Littler Lightbulb – October 2026 Employment Appellate Roundup

Ninth Circuit Affirms Dismissal of § 1983 and Title VII Failure to Accommodate COVID-19 Claims 

MacDonald v. Oregon Health and Science University, __ F.4th __ (9th Cir. Oct. 2, 2026), involved a religious exemption request to a state-mandated COVID-19 vaccine requirement by a nurse who worked in a state university hospital where she had physical contact with or was near patients. Her duties included feeding, bathing, diapering, administering medications, responding to emergencies, and assisting mothers with holding and breastfeeding their babies. After the request was denied and she was terminated from employment for refusal to be vaccinated, the plaintiff filed suit in federal court alleging violation of her First Amendment free exercise rights under 42 U.S.C. § 1983 and Title VII for failure to accommodate her religious beliefs. The district court dismissed the plaintiff’s free exercise claim on qualified immunity grounds and granted summary judgment to the employer on the plaintiff’s Title VII failure to accommodate claim. The plaintiff appealed to the Ninth Circuit, which affirmed the district court’s decision on both claims.

As to the plaintiff’s free exercise claim, the Ninth Circuit agreed with the district court that to establish a violation of free exercise rights there must be a “clearly established” right that was violated, and the “the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations …was not clearly established when the defendants denied the plaintiff’s religious exemption.” 

On the Title VII failure to accommodate claim, the Ninth Circuit cited decisions from other circuit courts as well as the Ninth Circuit that have consistently upheld summary judgment for healthcare employers on the grounds that religious exemptions from COVID-19 vaccine mandates posed an undue hardship due to the health, safety, operational, and financial burdens unvaccinated workers created for patients and healthcare staff. Assessing these factors in this case, the court found the employer’s evidence of undue hardship in accommodating the plaintiff’s vaccine exemption request was undisputed and “so one-sided that [the employer] must prevail as a matter of law.”

Ninth Circuit Affirms Dismissal of COVID-19 Testing and Masking Policy Claims

In another lawsuit related to an employer’s COVID-19 policies, Schmidt v. City of Pasadena, __ F.4th __ (9th Cir. Oct. 5, 2026), the plaintiff, a city employee, requested and received an exemption from the employer’s vaccine requirement but alleged that the employer’s testing and masking requirements for unvaccinated employees created a hostile work environment by revealing the employee’s unvaccinated status. The district court dismissed the claims and the plaintiff appealed to the Ninth Circuit.

On appeal, the employer asserted immunity from the plaintiff’s claims under the Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity from claims relating to the administration of certain medical countermeasures during a declared public health emergency. For the PREP Act to apply in this case, the Health and Human Services (HHS) Secretary was required to publish a declaration in the Federal Register that COVID-19 “constitutes a public health emergency,” which it did. The Ninth Circuit also determined that the saliva test and mask requirements constituted “diagnostic” and “respiratory protective” devices under the broad definition of “covered countermeasures” permitted by the PREP Act and the measures had received the required federal authorization under the HHS Secretary’s declaration. Accordingly, the Ninth Circuit affirmed dismissal of the case. 

Eighth Circuit Affirms Summary Judgment for Employer in Race and Gender Discrimination Case

After she was terminated for performance issues, including failure to follow operational procedures and a verbal altercation with a supervisor, the plaintiff in Reed v. Remington Arms Co., Inc., __ F.4th __ (8th Cir. Oct. 8, 2026) filed suit under Title VII claiming race and gender discrimination, a hostile work environment, and retaliation. The district court granted summary judgment to the employer on all claims and the plaintiff appealed to the Eighth Circuit.

First, the Eighth Circuit found the employer provided a legitimate nondiscriminatory reason for the termination and the plaintiff failed to provide evidence of discrimination. Among other things, the court rejected the plaintiff’s claim that a white male employee who was similarly situated was treated more favorably, finding that although the other employee had the same job title, worked the same shift, and was subject to the same production expectations, he did not engage in serious misconduct, as did the plaintiff, and therefore he was not similarly situated.

As to the hostile environment claim, the court emphasized the “demanding” standard for establishing a hostile environment claim under Title VII. Citing prior Eighth Circuit cases the court stated Title VII “does not prohibit all verbal or physical harassment and it is not a general civility code for the American workplace.” The Eighth Circuit agreed with the district court that the plaintiff’s co-worker’s alleged conduct, including turning off the plaintiff’s machines before her shift began, incorrectly reporting the plaintiff had not worked her shift, and blaming her for machine failures, was not sufficiently hostile or abusive to support a hostile work environment claim.

The Eighth Circuit also rejected the plaintiff’s claim that she was terminated in retaliation for complaining to her supervisors, six months earlier, that she felt her co-workers were racist. Again citing prior Eighth Circuit precedent, the court stated a six-month gap between protected activity and termination is insufficient to support an inference of retaliation based on temporal proximity at the summary judgment stage. “Temporal proximity between the protected conduct and adverse action ‘must be very close’ for timing alone to be sufficient.” Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (quoting Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)).

Ninth Circuit Issues Preliminary Injunction Barring California’s Captive Audience Ban

In California Chamber of Commerce v. Bonta, __ F.4th __ (9th Cir. Oct. 29, 2026), the Ninth Circuit affirmed a preliminary injunction blocking enforcement of California SB 399, which prohibits employers from taking adverse action against employees who do not attend so-called “captive audience” meetings. The statute applies to employer-sponsored meetings regarding the employer’s views about religious or political matters, which the statute defines to include labor organizations. The plaintiffs in the case, three industry groups, claimed SB 399 violated their First Amendment free-speech rights. 

In assessing whether the statute violated the First Amendment, the Ninth Circuit found that the statute applied to speech, rather than just attendance at meetings, stating: “It prohibits adverse action only when the meeting’s purpose was for the employer to engage in expressive activity,” and did not apply to meetings for other purposes. Next the Ninth Circuit determined that the statute was “content-based” and therefore “presumptively unconstitutional” because it only applied to speech on certain topics—politics and religion. The court also found the statute is “speaker-based” in that it applied only to the employer’s speech. Accordingly, the Ninth Circuit held the statute may be justified only if the state proves it is “narrowly tailored to serve compelling state interests,” which it was unable to do.