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Green Light for United Workers Creates a Job Bias Claim Niche

March 1, 2022, 10:30 AM

A federal appeals court recently revived a bid by United Airlines employees for a preliminary injunction against the company’s Covid-19 vaccine mandate in a decision revealing the obstacles workers face to get an immediate court order to block alleged job discrimination.

The decision highlights the hurdle created by federal anti-bias laws’ requirement that a worker exhaust their administrative remedies with an agency before pursuing their claims in court. It also shows the high bar for a worker to establish that the alleged discrimination creates the type of irreparable harm meriting a preliminary injunction.

“Both the exhaustion requirement and the irreparable harm standard operate to shield employers and to keep the courts’ dockets lower—it’s a twofer,” said Charles Sullivan, law professor emeritus at Seton Hall University who’s written extensively on discrimination law. “That would be a big problem for employers if they had to face a preliminary injunction request every time they fired a worker in a plausible discrimination case.”

A divided U.S. Court of Appeals for the Fifth Circuit panel last month allowed two United workers to seek an injunction despite the fact that they’re still waiting on Equal Employment Opportunity Commission action on their religious discrimination charges.

The “ongoing coercion” against the workers to get vaccinated despite their faith-based objections qualifies as the type of “extraordinary and rare” situation calling for interim relief, the panel majority said. The appeals court sent the case back to a district court judge to reconsider other factors needed for the workers to win a preliminary injunction.

The majority’s ruling, according to the dissenting judge on the Fifth Circuit panel, was an “orgy of jurisprudential violence” that could lead to job bias cases surging, unexhausted claims flooding courts, and organizations grinding to a halt.

United last week asked the full Fifth Circuit to review the panel’s decision, which is unpublished and therefore not binding precedent, yet could be persuasive to other courts. The workers’ response is due March 7.

The airline’s attorney, former U.S. Justice Department lawyer Hashim Mooppan of Jones Day, declined to comment. The workers’ lawyer, Gene Schaerr of Schaerr Jaffe LLP, didn’t respond to requests for comment.

Exhaust or Not?

The United workers sued for a preliminary injunction under Title VII of the 1964 Civil Rights Act, which prohibits job bias based on sex, race, religion, and other protected categories.

Title VII—as well as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act—call on workers to exhaust their administrative remedies with the EEOC or equivalent state agency before suing a private employer in federal court.

The Fifth Circuit said it was bound by its 1973 decision in Drew v. Liberty Mutual Insurance to rule that the United workers could win an interim court order to block the company’s vaccine mandate while their EEOC charge is pending, provided they met the criteria for winning one.

At least three other federal appeals courts—the Second, Ninth, and District of Columbia circuits—have similarly permitted workers to seek preliminary injunctions on Title VII claims absent administrative exhaustion, according to a Bloomberg Law analysis.

The First and the Sixth circuits have declined to rule on the availability of pre-exhaustion court orders in decisions that denied preliminary injunctions for other reasons.

But United argued in its petition for full Fifth Circuit review of the divided panel’s February decision that modern U.S. Supreme Court rulings invalidate that type of earlier precedent allowing workers to sue in court for interim relief. The high court’s 2016 ruling in Ross v. Blake, for example, said that judges can’t make exceptions to exhaustion requirements, the company said.

The Fifth Circuit majority said Ross didn’t apply because it dealt with a claim against government officials stemming from the alleged mistreatment of a prisoner, rather than a request for a preliminary injunction to prevent irreparable harm.

Religion Singled Out

Courts typically don’t see wrongful termination or other adverse employment action as irreparable harm because what a worker would get for winning their lawsuit—such as backpay and reinstatement—compensates them for their employer’s unlawful conduct.

That view has prevailed even when a worker’s allegedly biased termination could trigger additional harms. The Fifth Circuit in a 1975 decision said a woman who claimed she lost her job due to sex discrimination didn’t show irreparable harm even though losing her job would likely cause the foreclosure of her house.

In the United vaccine mandate case, the Fifth Circuit majority said the workers aren’t seeking a court order just to prevent being put on indefinite unpaid leave for not getting the jab against Covid-19.

The workers alleged a separate harm based on being coerced to violate their religious beliefs, which is “antecedent to, independent from, and exogenous to any adverse employment action,” the majority said.

The concept of “ongoing coercion” as an irreparable harm appears to be tailored so it would only apply to claims of religious bias, said Angela Morrison, a law professor at Texas A&M University and former EEOC lawyer.

There’s an element of choice involved with religion that isn’t present with other types of protected categories, Morrison said. That makes it difficult to claim coercion related to something like race or even gender expression, she said.

“Religion seems to have been singled out as having different rules as opposed to race, gender, national origin, or color under Title VII,” Morrison said.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editor responsible for this story: Andrew Harris at; Jo-el J. Meyer at