Fifth Circuit Court of Appeals Provides Guidance on Reasonable Accommodations

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Attorney Harrison Oldham

Brett Horvath was employed as a driver/pump operator by the City of Leander Fire Department (Leander is a city north of Austin, Texas). In 2016, the Fire Department began requiring TDAP vaccinations (TDAP is a combination vaccine that protects against three bacterial diseases: tetanus, diphtheria, and pertussis (whooping cough)). Horvath, an ordained Baptist minister, objected to the requirement on religious grounds. In response to his objection, the City provided two proposed accommodations: be  reassigned  to  the  position  of  code  enforcement  officer,  which  offered  the  same pay and benefits and did not require a vaccine, and the City would cover the cost of training; or he could remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on  duty,  submit  to  testing  for  possible  diseases  when  his  health  condition  justified,  and  keep  a  log  of  his  temperature.

Horvath did not accept either accommodation and instead sent the Department a letter attempting to further negotiate the offered accommodations. Fire Chief Gardner refused to negotiate the accommodations and demanded that Horvath select one of the two proffered alternatives, but Horvath again refused to accept either option. He was subsequently fired by the Fire Chief for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights. The district court granted the City and Chief Gardner’s motion for summary judgment, which Horvath appealed.  The Fifth Circuit Court of Appeals reviewed the case.

For claims of racial discrimination under Title VII, “an employer has the statutory obligation to make reasonable accommodations for the religious observances of its employees, but it is not required to incur undue hardship.” Once an employer has established that it offered a reasonable accommodation, even if that alternative is not the employee’s preference, it has satisfied its obligation under Title VII as a matter of law. The employer’s offer of a reasonable accommodation triggers an accompanying duty for the employee: “An employee has a duty to cooperate in achieving accommodation of his or her religious beliefs and must be flexible in achieving that end.”

In addition, it’s important to note that Title VII and TCHRA claims are subject to the burden-shifting framework announced from McDonnell Douglas Corp. v. Green. First, a plaintiff must establish a prima facie case of religious discrimination. If the plaintiff makes such a showing, the burden shifts to the employer “to demonstrate either that it reasonably accommodated the employee, or that it was unable to [do so] without undue hardship.”

The City conceded that Hovart established a prima facie case of religious discrimination but argued that it offered two reasonable accommodations. The district court found that the City provided a reasonable accommodation by offering to transfer Horvath to the code enforcement position in the department. In response, Horvath argued that the code enforcement officer position was not reasonable, as he believed the code enforcement officer position is the least desirable position in the department because of its duties and hours (which were normal business hours Monday – Friday with occasional work on Saturdays). He also, and probably more important for him, argued that the position was unreasonable because the schedule would prevent his continuing his secondary employment running a construction company, which would reduce his total income by half.

The court of appeals did not find his arguments convincing.  The court reasoned that “While Horvath and other Leander firefighters may prefer the hours and duties of traditional firefighting jobs, ‘Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee.’” Additionally, the court of appeals found that Horvath’s reduction in his income due to loss of an outside job did not render the accommodation unreasonable – concluding with the statement that “Though reasonableness may often be a question for the jury, the facts here ‘point so strongly and overwhelmingly in favor of [the City] that reasonable [jurors] could not arrive at a contrary verdict.’”

The court of appeals also reviewed Horvath’s retaliation claims under Title VII and TCHRA: that he was fired not for his refusal to accept the offer of accommodation but for his letter that sought further to negotiate a reasonable accommodation of his religious beliefs. In response, the City argued that its legitimate, non-discriminatory reason for Horvath’s termination was his defiance of a direct order by failing to select an accommodation. The district court found that “Horvath was terminated not for engaging in protected activity by opposing a discriminatory practice in a letter, but for failing to comply with a directive that conflicted with his religious beliefs.” The court of appeals agreed with the district court.

Last, the court reviewed Horvath’s Free Exercise claim that the City and Gardner violated his right to practice his religion through a policy requiring him to wear a respirator mask in lieu of taking the TDAP vaccine. The Free Exercise Clause, applied to the states by incorporation into the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Horvath attempted to attach municipal liability to the City under § 1983.

One of the requirements to impose municipal liability under § 1983 is to show “an official policy.” Here, Horvath argued that the official policy was “that any fire fighter who declined a TDAP booster on religious grounds would have to wear an N95 respirator for the entirety of each work shift in order to remain a fire fighter.” The district court found that the respirator requirement was not an official policy, but one of two accommodations offered to Horvath in light of his religious objection to the TDAP directive, and alternatively, even if the respirator requirement was an official policy, Horvath’s right to freely exercise his religious beliefs was not burdened by the respirator requirement because the department’s proposed accommodations would have permitted the firefighter to exercise his religion by avoiding vaccination.. The court of appeals agreed.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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