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Attorneys spar over United Airlines vaccine mandate at Fifth Circuit

In a hearing before the New Orleans-based appeals court, an attorney for workers who have refused to get vaccinated against Covid-19 for religious reasons said they are opposed to stem cell research that helped develop the shots.

NEW ORLEANS (CN) — An attorney representing United Airline employees who sued the company over its Covid-19 vaccine mandate told a Fifth Circuit panel Monday evening that getting the shots would make them "complicit in the destruction of human life" because the three vaccines available in the U.S. were developed using stem cell technology.

Some of the workers have previously claimed in court documents they could not get the vaccinate for various other reasons, including having severe reactions to allergens, including eggs and penicillin, while another plaintiff said he suffered from multiple sclerosis.

Attorney Gene Schaerr argued on behalf of the United employees Monday night and said the key issue in the case is that the airline is using coercion to force its employees to get vaccinated, arguing that doing so would cause them irreparable harm both because of the crisis of consciousness over doing something they are opposed to and because it cannot be undone.

“What’s key here is a sustained effort at coercion” from United Airlines, Schaerr told the three-judge panel.

Six employees based at Dallas-Fort Worth International Airport filed a federal class action against United in September, saying it forced employees who refused vaccines for medical or religious reasons to take unpaid leave, in violation of their rights under the Americans with Disabilities Act and Title VII of the Civil Rights Act. The plaintiffs are awaiting permission from the Equal Employment Opportunity Commission to pursue their Title VII claims.

The workers are seeking a restraining order and say they have been caused irreparable harm by being faced with the “impossible choice” of compromising their religious beliefs by taking shots or losing their paychecks.

U.S. District Judge Mark Pittman in Fort Worth has issued three orders denying their request – first on the original motion for a preliminary injunction, again on a motion for reconsideration, and a third time on a motion for injunction pending the Fifth Circuit appeal.

Pittman’s first order rejected the plaintiffs’ arguments that a restraining order was needed to prevent United Airlines from placing them on unpaid leave. In his last order, the Donald Trump-appointed judge was more firm in his denial.

“The court twice considered plaintiffs’ arguments that they were entitled to an injunction; the court twice concluded that plaintiffs failed to meet their burden to establish an essential element—a substantial threat of irreparable injury exists absent an injunction,” Pittman wrote in his Nov. 23 order. “For the same reasons articulated in its previous orders, the court must also deny plaintiffs’ present motion: Plaintiffs again failed to meet their burden on the irreparable harm element.”

Monday night's hearing was the second time the case has come before the New Orleans-based Fifth Circuit. Last month, a three-judge voted 2-1 to deny the plaintiffs' emergency request for an injunction.

In his dissent, U.S. Circuit Judge James C. Ho said the employees have clearly suffered irreparable injury in being offered indefinite unpaid leave if they choose not to vaccinate.

“Forcing individuals to choose between their faith and their livelihood imposes an obvious and substantial burden on religion,” the Trump appointee wrote. “Make no mistake: Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children."

Ho also wrote in his Dec. 13 dissent that "United is forcing this crisis of conscience on the eve of Christmas—one of the holiest times of the year, the season when Christians cherish devoting their hearts and souls to both faith and family alike, not to choosing between the two."

Hashim Mooppan, who argued Monday evening on behalf of the Chicago-based airline, told a different Fifth Circuit panel that stopping United’s vaccine mandate at this juncture, when the EEOC has not yet even said the lawsuit can progress, would set a dangerous precedent for Title VII employment discrimination cases.

“It would turn Title VII on its head," Mooppan said, if the only people who receive accommodation under the statute are those seeking accommodation for religious purposes.

Workplace race discrimination and sex harassment cases are at the heart of Title VII, he argued, and such cases typically present extreme and unpleasant circumstances for those involved.

Mooppan called unpaid leave a “significant benefit” because it gives an employee the chance to work for the company again, as opposed to being fired. He argued the employees are not being coerced into violating their religious beliefs.

“They can take the unpaid leave – just like every other Title VII litigant claim ever – and then litigate,” the attorney said. “The mere fact that they might not have the financial situation to wait it out is not unique.”

He added there is no evidence any of the plaintiffs feel any coercion at all. "They just feel the same pressure and uncertainty as every other Title VII” plaintiff, Mooppan argued.

During rebuttal, the plaintiffs' attorney, Schaerr, said religious discrimination is on the same level as race and sex discrimination and is therefore clearly a Title VII issue. He added that there won’t be a trial until the EEOC grants the plaintiffs the right to pursue the lawsuit.

U.S. Circuit Judge Jennifer Walker Elrod, an appointee of George W. Bush, asked when that will be. Schaerr said the answer was not in the public record.

Elrod was joined on the panel by U.S. Circuit Judges Jerry Smith, an appointee of Ronald Reagan, and Andrew Oldham, a Trump appointee. The judges did not indicate when they will rule on the matter.

Attorneys for both sides did not immediately respond to emailed requests for comment.

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