A federal judge has, for now, denied clearance to a lawsuit accusing United Airlines of discriminating against pilots and other employees who have not obtained coronavirus vaccinations.
The January lawsuit, filed in Cook County Circuit Court, asserts violations of the Genetic Information Non-Disclosure Act and religious discrimination protections on behalf of almost 30 named plaintiffs who filed medical and religious accommodations objections to United's Covid-19 vaccine mandate.
According to the complaint, United either fired workers or threatened termination, which they alleged was a violation of Title VII religious freedom protections. The lawsuit asserts United put workers who declined vaccines on indefinite unpaid furlough and required those who obtained religious exemptions to wear “individually identifiable symbols,” which plaintiffs claimed violates the GINA law by visually segregating and identifying them apart from their peers as conscientious objectors, and disclosing their private health matters to the public.
United removed the complaint to federal court, then sought to dismiss. U.S. District Judge Matthew Kennelly, in an opinion filed Sept. 5, said he originally set a schedule for briefing United’s motion to dismiss, then extended the deadline at Anderson’s request. On the later due date, Anderson filed an amended complaint. Kennelly said under federal court rules that filing was outside the timeline for an amendment and so he would instead consider it a motion for leave to file an amended complaint.
The airline then filed a response opposing a motion for leave to file an amended complaint. Anderson filed his own reply to United’s response, and Kennelly’s Sept. 5 opinion denied the motion and gave Anderson until Sept. 26 to propose an amended complaint “stating at least one viable claim or which the court has jurisdiction,” otherwise he will enter judgment in favor of United.
Anderson claimed United’s vaccine, mask and testing mandates violated provisions of the federal Food, Drug and Cosmetic Act. But when United argued the U.S. Food and Drug Administration’s Emergency Use Authorization doesn’t provide a private right of legal action, Anderson didn’t respond.
“He has therefore forfeited the point,” Kennelly wrote, while also noting federal court precedent establishing neither the FDCA nor any attendant emergency authority allow such lawsuits.
Anderson also alleged United violated privacy laws when it mailed postcards to employees reminding them to upload their vaccination status and required unvaccinated workers to wear facemasks on the job. But Anderson again forfeited, Kennelly said, by not responding to United’s arguments the postcards neither contained private information nor constituted public disclosure. Regarding facemasks, United said wearing a mask alone doesn’t indicate vaccination status, and again Anderson didn’t respond.
A negligence claim on the same allegations failed, Kennelly said, because Anderson didn’t explain how differences in legal theories would overcome his pleading deficiencies, nor did he respond to United’s argument the Illinois Workers’ Compensation Act bars the negligence claim.
Anderson also failed to advance a claim United violated the state Whistleblower Act because he doesn’t allege taking a Covid vaccine renders a pilot unable to meet the requirements of their medical certificate.
Turning to the Title VII claims, Kennelly noted only three of the 28 plaintiffs bringing that claim actually applied for a religious accommodation. He said the complaint itself indicates United responded differently to those three requests, undercutting a contention all airline employees were treated equally.
“Moreover, United contends, and Anderson does not dispute, that a failure to accommodate claim requires the plaintiffs to have suffered an adverse employment action,” Kennelly wrote. “The complaint does not specify what adverse actions, if any, the 25 plaintiffs experienced.”
For the three employees who did seek religious exemption, Kennelly said, the complaint needs to more plausibly show United fired them for their religious practices. But he also said United’s reasonable accommodation process was applied without religious discrimination, as it allowed requests for medical exemptions, and noted allegations of being fired for “noncompliance” don’t make connections to the employees’ religion.
The complaint’s disparate treatment count failed, Kennelly said, because it failed to allege United developed its vaccine mandate to exact adverse effects on employees based on religion. The same weakness affected a Title VII harassment claim alleging a hostile work environment.
Kennelly also said Anderson failed to sufficiently allege GINA violations, agreeing with United that a Covid vaccine isn’t “gene therapy.” The complaint, Kennelly said, doesn’t allege “a Covid-19 vaccine is an ‘analysis of human DNA, RNA, chromosomes, proteins or metabolites, that detects genotypes, mutations or chromosomal changes,’” as a GINA claim would require. He also quoted the Equal Employment Opportunity Commission’s assertion that vaccine requirements only violate GINA if screening questions reference an employee’s family medical history, which Anderson didn’t allege.
Anderson also forfeited arguments United positioned itself as a state actor by failing to explain the connection, Kennelly said, and even so would’ve failed on merits because the complaint doesn’t allege the federal government coerced or influenced the airline’s decisions.
Finally, United made several contentions supporting its motion to dismiss Anderson’s claims of intentional and negligent infliction of emotional distress, and Kennelly said Anderson failed to respond to any of those points.
Kennelly set a status hearing for Sept. 29.
Plaintiffs are represented by John M. Pierce of John Pierce Law, of Woodland Hills, California.