A federal judge has dismissed a lawsuit from Chicago police officers who said the city’s Covid vaccine mandate constituted illegal discrimination.
An attorney for the police officers has vowed to appeal, with the goal to ultimately land the case or one like it before the U.S. Supreme Court.
In an opinion filed May 23, U.S. District Judge Robert Gettleman said 17 named plaintiffs failed to state a claim in any of the six combined counts from their third amended complaint. Counts include allegations of religious discrimination as a violation of Title VII of the 1964 Civil Rights Act; infringement on First Amendment religious freedom protections and 14th Amendment equal protection rights; due process deprivation of a right to medical privacy and state law claims, including violation of the Religious Freedom Restoration Act.
Cass T. Casper
| talonlaw.com
According to Gettleman, 16 of the plaintiffs are police officers while one is a police communicator with the city’s Emergency Management and Communications office. All allege they sought a religious exemption from the October 2021 vaccine mandate but still encountered issues.
“Each request was either incomplete and/or more information was requested by defendant,” Gettleman wrote. “Each plaintiff who provided the requested information alleges that the requested accommodation was approved. Each plaintiff refused to comply with the vaccination policy by submitting their vaccination status into the portal by Oct. 15, 2021, even after receiving direct orders to do so, resulting in adverse consequences. None of the requests for accommodations indicated that any plaintiff had a religious belief that precluded them from entering the required information into the portal.”
In dismissing the Title VII complaint, affecting only three plaintiffs, Gettleman rejected the argument a religious exemption cleared officers from every aspect of the vaccination policy, rooted in the language from the city: “Dear employee: Your request for a religious exemption from the City of Chicago’s Mandatory COVID-19 Vaccination Policy has been: Approved.”
Gettleman said the policy specifically said workers who weren’t vaccinated by the deadline would have to take Covid tests twice each week and report those results. As such, those given an exemption from the shot couldn’t have reasonably believed they were free from other requirements under the policy, especially since a supervisor provided direct orders to report on the portal.
Regarding First Amendment protections, Gettleman said the U.S. Seventh Circuit Court of Appeals had already determined the city’s policy was facially constitutional and rejected the plaintiffs’ contention the city was nonetheless discriminatory because of inconsistent application.
“Again, they were disciplined for failing to report their status into the Portal after receiving a direct order to do so,” Gettleman wrote. “None of the plaintiffs have identified any religious reason for failing to comply. And, while they have alleged that employees who received a religious accommodation and refused to report received differing discipline based on their situations, they have failed to allege that employees without accommodations who failed to report were treated more favorably.”
Gettleman further rejected the equal protection argument, noting all unvaccinated employees were required to test and report, even those without an approved religious exemption. Regarding due process and nondisclosure of private medical information, he said: “The Seventh Circuit has been hesitant to expand the scope of fundamental rights under substantive due process, specifically noting that employment-related rights are not fundamental.”
The state law claims similarly failed, he said, as “numerous courts” held governments had a compelling interest in mitigating the spread of Covid and the fact the city granted a religious exemption to each plaintiff undercuts their ability to claim religious discrimination.
The officers are represented by attorney Cass Casper, of Disparti Law Group, Chicago.
“We have long expected the Covid litigation to be a hard-fought battle given that there are numerous constitutional issues involved that are certainly going to be considered by the Seventh Circuit, if not eventually the U.S. Supreme Court,” Casper said in a May 30 email in response to questions from The Cook County Record. “My office very much anticipates that one of these Covid cases, whether from the Midwest or elsewhere in the country, will eventually be taken up by the Supreme Court. Therefore, we see this as a practical ruling that enables us to get these issues into the Seventh Circuit quickly. We intend to get an appeal on file this week.”
Kristen Cabanban, a spokesperson for the Chicago Department of Law, declined to comment.