Rules Are for Schmucks: Civil Rights Snafu – Part 2

A flu ward in 1918

Last week we looked at the courageous chairman of the US Commission on Civil Rights, Martin Castro. He displayed an unusual level of guts for a Washington bureaucrat by publishing a report telling it like it is about how religious privilege legal theories, going far past what’s provided in the Constitution, are undermining fundamental laws enforcing equal treatment for all citizens. Since then, he’s taken even more heat, with virtually no one standing up to defend him.

While he’s on a roll, though, perhaps he should take a quick look inwards, at the Washington civil rights establishment itself. He won’t like what he sees.

The US Civil Rights Commission simply advises the government on civil rights policy. The teeth are found over at the Equal Employment Opportunity Commission (EEOC), which has the power to bring lawsuits against employers. And now the EEOC is using that power to back up the most ridiculous instances of religious privilege—asserted against the common good—that anyone can imagine.

The commission’s report is certainly correct when it states, in its very first paragraph, that civil rights protections “are of preeminent importance in American jurisprudence.” But there’s at least one thing even more important than civil rights: staying alive. For if you can’t stay alive to enjoy your freedom from discrimination on the basis of race, gender, etc., what good is it?

A religious privilege that threatens the ability of Americans to remain alive ought to be subjected to some scrutiny, shouldn’t it?

The EEOC has been bringing a series of cases this year supporting the sacred religious privilege of hospital workers to refuse to be vaccinated against influenza, one of the most lethal infectious diseases known to humankind. The 1918 epidemic alone is thought to have killed a hundred million people, more than died in all of World War I. Modern flu vaccines will not absolutely guarantee protection against the disease, as I can attest from personal experience, but if enough people take it to boost population-wide resistance, the risk to everyone can be dramatically reduced.

The need for protection is particularly acute in hospitals where so many people are already in a weakened condition, such that a bout of flu can be life-threatening. Every year, according to the Centers for Disease Control, an estimated 648,000 people in the United States develop infections during a hospital stay, and about 75,000 of them die. Not all of these infections are influenza, but many of them are, which is why CDC stresses the need for influenza prevention.

Despite the overwhelming need to do everything in our power to keep flu bugs out of our hospitals, the EEOC is resolutely defending the religious privilege of hospital workers to infect others at will. Not in just one suit, but in what appears to be a series of hammer blows directed against Americans’ health.

In Asheville, North Carolina, the EEOC filed a suit against Mission Hospital last April, even though this hospital actually allows its employees to exempt themselves from influenza vaccination based on their religious beliefs. All the hospital asks is one thing: that employees request their special privilege exemption no later than September 1. Three employees failed to do so, and then refused to take the vaccine anyway, so the hospital fired them. One of these employees, who works in a preschool run by the hospital, says she prefers faith healing instead. Another says he is a Muslim. Although Islam has no prohibition on vaccination, this individual says he prefers “natural herbs.” Now, as a result of enforcing a simple deadline, the hospital finds itself hauled into court by the federal government, which has vastly more resources to fling at these cases than most private employers do.

In Erie, Pennsylvania, just last month, the legal juggernaut rolled on, with an EEOC case brought against Saint Vincent Hospital. Once again, the employer actually allowed religious exemptions to its general employee vaccination requirement. All it required was some sort of letter from a clergy member indicating that opposition to vaccination was part of the employee’s religious doctrine. When some employees could not or would not provide this documentation, they were fired—and then the EEOC roared in with guns blazing.

Last June in Springfield, Massachusetts, the EEOC filed yet another suit, this one against Baystate Medical Center—even though Baystate, like the other two, actually allows religious exemptions from its vaccination rules. All they asked this employee to do was to wear a mask while she did her work if she wouldn’t get the flu shot. She wore the mask for a little while, but then decided that people couldn’t hear her very well with a mask on, so she stopped. After she was fired, EEOC jumped in and is now seeking punitive damages against the hospital for its temerity in trying to keep its customers safe. What makes this case even more ludicrous is the fact that the EEOC itself, on its own website, published a letter in 2012 saying that an employer could choose to impose a mask requirement as a substitute for influenza vaccination. But when an employer actually falls for that bait—gotcha!

Some overly clever lawyers might look at these three cases and say “Hmmm… looks like giving any hospital employee at all a religious exemption from a vaccination rule is a prescription for trouble. Maybe you’re better off not having any exemptions, especially since that 2012 letter on the EEOC website suggests this is OK.” However any sucker who swallows what the EEOC says in its public guidance, like the folks at Baystate apparently tried to do, is naïve in the extreme. Government prosecutors are always looking for scalps; religious privilege cases are having a court-sanctioned field day; and doing anything, ever, to an exemption-demanding employee other than genuflecting and saying, “Yes sir, or ma’am, and are there any other work rules you’d like to ignore as well?” is bound to get you in trouble.

Given that the EEOC is pulling so hard in the opposite direction from civil rights commissioner Castro, I wonder if perhaps some effort could be made to get them on the same page. In the interests of saving Castro some time, and in homage to his admirable succinctness, I’ve drafted the following short letter for him to consider sending:

Dear EEOC:

Have you lost your mind?

You need to stop jeopardizing the health of the single most vulnerable class of Americans—those who have to spend time in our hospitals. Right now!

Stop prosecuting hospitals—or anyone else—for requiring their employees to get the flu vaccine. The health of Americans is too precious for bureaucrats to toy with.


Martin Castro