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New York State Supreme Court Judge Ralph J. Porzio today denied the City’s motion to dismiss a lawsuit brought by New York Department of Education (DOE) workers who were denied religious accommodation from the COVID-19 vaccine mandate.
Sujata Gibson, the plaintiffs’ attorney, told The Defender the decision was “huge” for the plaintiffs:
“Judge Porzio made the right decision, followed the law, and protected thousands of people who deserve their day in court and deserve relief from the outrageous religious discrimination that they faced.”
On May 18, Gibson argued against the motion by the city to dismiss DiCapua v. City of New York in Judge Porzio’s Staten Island courtroom.
The lawsuit was filed in February by Teachers For Choice and other fired NYC DOE employees and was sponsored in part by Children’s Health Defense (CHD) and CHD-New York.
The lawsuit alleges that defendants New York City and the New York City DOE, “harassed, denigrated, and discriminated against” workers seeking religious exemption when implementing the COVID-19 vaccine mandate.
In doing so, the defendants engaged in a continuing pattern of discriminatory conduct against the DOE workers in violation of the New York State Constitution, the New York State Human Rights Law, the New York City Human Rights Law and Article 78 of the Civil Practice Law and Rules.
The plaintiffs seek to have their jobs reinstated, back pay and benefits, seniority and pension credits restored.
Gibson told The Defender that well over 150 people attended the court session, which is just a fraction of the up to 7,000 people affected by the denial of religious exemptions.
She said the people who attended were dignified and sincere, which she thinks impressed the court, adding:
“It’s important for the court to see how many people are impacted …
“People traveled for this appearance from out of state — who have had to move out of state. Some people took two hours on trains and buses, on public transportation to get here from other boroughs, and from other parts of the state.
“It really means a lot to people. And it means a lot to the court to see how much it means to people.”
Plaintiffs petition for class action
The next hearing will take place on Aug. 14, when Judge Porzio may decide on the plaintiff’s motion to certify class status for all DOE employees adversely affected by the alleged discriminatory policies.
He could also decide on the Article 78 question — which is whether to overturn the DOE’s determination on the religious exemptions and offer relief to the plaintiffs.
Rally & Court in Staten Island today 7-18-23#TeachersforChoice backed by @ChildrensHD
Case adjourned, but on very good terms. We come back 8-14-23 11am (rally at 10am)
Ty @PIX11News for coming!
Get all updates at https://t.co/ZnG7wv6HTu pic.twitter.com/6DZik3AzvY
— Teachers for Choice (@teacher_choice) July 18, 2023
The plaintiffs filed a motion for class certification for all people affected by the DOE’s decisions on religious exemption, citing that all members of the class were affected by the same errors of law and that “the autogenerated, vague and conclusory denials” were all “arbitrary and capricious.”
The defendants opposed the motion to certify a class, arguing that the class definition was overly broad, that the class certification would require “mini-trials” for each class member and that the petitioners didn’t meet the minimum requirements for commonality defined in New York law.
If Judge Porzio recognizes the class, and if the plaintiffs win relief, all members of the class would be reinstated, Gibson told The Defender. “All of their denials would be vacated as if they never happened, and they’d be reinstated with full seniority and no break in service and back pay and attorney’s fees.”
But even if the workers win the motion to define the class and win relief, there will still be work to be done, Gibson said.
Once the denied exemptions are reversed, the violations of the New York State Constitution and the state and city human rights laws will still have to be litigated.
“We can prove our case for why the city should be liable not only for back pay but also for costs,” Gibson said. She added:
“A lot of people had enormous, enormous collateral damage here.
“They lost rent-controlled apartments, their homes were foreclosed. They’ve had to move. People have gotten severely sick. Some people took the vaccine and got ill, some people just got ill from all of the stress of being ostracized and discriminated against and bullied for the last two years. Some people have lost career opportunities. Most of them — really all of them — have been subjected to extreme pain and suffering.”
In Kane v. de Blasio, a case brought by many of the same plaintiffs and also represented by Gibson and supported by CHD in federal court, the 2nd Circuit Court of Appeals already held that DOE’s religious accommodation policies were unconstitutional.
While resolution of the constitutional claims is pending in the appellate courts, plaintiffs were authorized to bring their statutory claims and seek certification as a class in New York State court after the district court declined to exercise jurisdiction over their state claims.
‘It felt like heresy tribunals’
In August 2021, New York City announced a COVID-19 vaccine mandate for DOE employees.
The city initially indicated it would not consider religious exemptions, but after a local court issued a temporary restraining order, the city agreed to adopt an accommodation policy.
The accommodation policy, however, was “facially discriminatory,” according to Gibson, because it was explicit that religious accommodation requests must be denied to anyone who is not a member of a “recognized” and “established” religious organization whose leader is against vaccination.
Christian Scientists were listed as the only example of a religion that a person could belong to and be granted a religious exemption.
“Right in its written policy, [DOE] required discrimination against unorthodox beliefs or most religions, basically,” Gibson said. “So [for example] they would deny all Catholics because the Catholic pope was vaccinated.”
On that basis, DOE denied religious exemptions to Christians, Jews, Buddhists and others, saying that although they believed that people’s religious objects were sincere, they did not meet the criteria for exemption.
“It felt like heresy tribunals,” Gibson said.
DOE granted religious accommodation for only 162 out of 7,000 requests.
The remaining employees who were not vaccinated were involuntarily suspended without pay and ultimately terminated, with “problem” codes attached to their permanent employee records and hurdles to getting employment anywhere, not just at the DOE.
Ten DOE employees filed a lawsuit, backed by CHD, in federal court (Kane v. de Blasio). The district court denied their requested injunction against the mandate.
The plaintiffs appealed and they were joined on appeal by another group of educators denied relief in the lower court (Keil v. City of New York). The two lawsuits are currently consolidated under Kane v. de Blasio in the federal court.
New York’s 2nd Circuit overruled the lower court, holding that the religious accommodation as it was written is unconstitutional and that it is illegal to deny a person religious accommodation “based on someone else’s publicly expressed religious views — even the leader of her faith.”
The case was sent back to the lower court after the city promised to provide “fresh consideration” to the requests for religious exemption by convening a citywide panel that would use standards required by Title VII, the New York State Human Rights Law and the New York City Human Rights Law, and to reinstate people with back pay if they qualified under those standards.
“But the citywide panel continued to apply the same unlawful standards,” Gibson told The Defender.
The panel re-reviewed the petitions of the 10 employees who filed the lawsuit, but they reversed only one of them. “They sent them all an auto-generated email that said, ‘does not meet criteria,’ and that’s it,” Gibson said.
Workers applying for religious exemption who went to the citywide panel were given the additional task of proving their exemption would not place an “undue hardship” on the city. But, Gibson said, under the city human rights law, the burden of demonstrating undue hardship rests with the city.
The plaintiffs in the consolidated cases again asked the 2nd Circuit court to stop the enforcement of the mandate in October 2022.
In February 2023, two days before oral arguments were set to take place at the 2nd Circuit for the consolidated federal lawsuits, Mayor Eric Adams announced the city would end the vaccine mandate for city workers.
However, those city workers who were fired as a result of not receiving the COVID-19 vaccine were not automatically reinstated. Instead, they have simply been told they can reapply for employment with the city.
Gibson told The Defender the withdrawal of the city’s vaccine mandate makes no difference for those teachers and DOE employees who were fired due to their unvaccinated status.
“It doesn’t change anything,” she said. “New York City’s discriminatory policies ruined a lot of lives and they need to make amends and understand that this cannot happen again.”
While the federal Kane v. de Blasio case before the 2nd Circuit continues to challenge the near-blanket denial of religious exemption requests by teachers on federal constitutional grounds, the current lawsuit against the city claims the state constitution was violated on the basis of freedom of religion rights.
The state case that moved forward today seeks class-action status, “to get relief for every DOE employee and contractor that was denied reasonable religious accommodation under the discriminatory policies,” Gibson said.
