A federal judge will not block NorthShore University Health System from potentially firing hospital workers who contend NorthShore wrongly denied their request to be exempt from COVID-19 vaccine requirements on religious grounds.
In mid-August, NorthShore University Health Systems ordered all of its 18,000 employees, contractors and volunteers to be fully vaccinated against COVID-19 by the end of October or face potential termination. On Oct. 29, U.S. District Judge John F. Kness issued a temporary restraining order against NorthShore.
But in an opinion issued Nov. 30, he said although the workers might ultimately be able to prevail in court, they couldn’t demonstrate the irreparable harm needed to justify a preliminary injunction that would prevent NorthShore from taking action against them while their lawsuit continues.
“Striving to save lives while still respecting fundamental rights — a goal professed by both sides — is, of course, both worthy and challenging,” Kness wrote. “But efforts to harmonize those twin aims of safety and liberty must always align with binding legal precepts.”
The plaintiffs have not disclosed their identity in legal filings and asked Kness to preserve their anonymity, each identified only as Jane Doe. He granted that request, but rejected their request to turn their lawsuit into a class action.
Attorneys from Liberty Counsel, a nonprofit religious liberty advocacy group, are representing the workers, who assert NorthShore has violated their rights under Title VII of the 1964 Civil Rights Act.
NorthShore operates six Chicago area hospitals, including Evanston Hospital; Glenbrook Hospital, in Glenview; Highland Park Hospital; Northwest Community Hospital, in Arlington Heights; Skokie Hospital; and Swedish Hospital, in Chicago.
The plaintiffs, who claim NorthShore initially indicated it would allow workers to claim religious exemptions, assert their interpretation of the Christian Bible concerning the sacred nature of human life, led them to reject medical treatments derived, in any part, from cell lines obtained from fetuses which may have been aborted decades earlier.
“At this preliminary stage, it is by no means settled that NorthShore has done all it can to reasonably accommodate” its employees, Kness wrote. “Initially, NorthShore told its employees that it could and would accommodate those with religious exemptions. NorthShore allowed each of the plaintiffs to perform their roles with masking and testing throughout much of the ongoing public health emergency. Even accounting for the widespread availability of vaccines for hospital workers beginning in early 2021, almost a full year passed during which NorthShore apparently considered masking and testing to be sufficient to keep its patients, visitors and employees safe.”
He further said NorthShore, as late as September, appeared to accommodate employees who requested exemptions by allowing routine testing indefinitely. The chain “provided little justification for its abrupt policy change” under which patients, visitors and professionals from other medical providers can enter NorthShore buildings without being vaccinated.
However, Kness said, courts have been reluctant to issue temporary injunctions for Title VII lawsuits because “in the ordinary case, money damages are available as compensation for the loss of income and other employment-related harms.” He said a 1991 amendment to the law allowed compensatory damages under Title VII violations, and now punitive monetary damages are available.
“Victorious plaintiffs suing under Title VII are entitled to uncapped amounts of back and front pay,” Kness wrote. “Given the availability of ‘front pay in lieu of reinstatement,’ demonstrating the irreparable nature of the harm from an adverse employment action is difficult. If plaintiffs here ultimately succeed on the merits, they will be entitled to the full panoply of legal remedies under Title VII — the availability of which conclusively undermines plaintiffs’ contention of irreparable harm under the Civil Rights Act.”
In agreeing to preserve pseudonymity, Kness said the workers offered several examples of online and in-person comments and encounters that underscore their concerns about being widely identified, including a “peaceful protest” that resulted in police intervention to protect one of the workers.
Finally, Kness said it is too early to determine if treatment of the workers as a class “is appropriate, even provisionally,” and also refused to grant preliminary class-wide relief.
NorthShore is represented in the case by attorneys Marc Jacobs and Paul Yovanic Jr., of the Chicago firm of Seyfarth Shaw.