Richardson v. The National Basketball Association

Background

Leroy Jerome Richardson, III, a former NBA referee, sued NBA Services Corporation and the National Basketball Association under Title VII of the Civil Rights Act of 1964. He alleged that the defendants unlawfully denied his request for a religious exemption from the requirement that NBA referees be vaccinated against COVID-19 during the 2021–22 season. Richardson did not referee during that season, and the NBA terminated his employment in September 2022.

The NBA and the National Basketball Referee Association had agreed that referees could seek health or religious exemptions from the vaccination requirement. The agreement created a Vaccination Exemption Board, or VEB, to review appeals of exemption denials. Richardson applied for a religious exemption, and the NBA denied his request after interviewing him. The VEB later affirmed that decision after a hearing at which Richardson was represented by counsel.

Federal lawsuit and waiver issue

The NBA argued that Richardson’s VEB appeal prevented him from bringing his Title VII claim in federal court. Judge Cote rejected that argument. The COVID-19 agreement created a separate appeal process but did not clearly state that using the VEB would waive statutory discrimination claims or the right to bring those claims in court. It also did not incorporate the collective bargaining agreement’s more detailed waiver provision. The court therefore held that Richardson’s lawsuit was not barred by his VEB appeal.

Title VII claim

Title VII requires an employer to accommodate an employee’s religious beliefs unless the accommodation would impose an undue hardship on the employer’s business. The NBA sought summary judgment, which is a decision without a trial when there is no genuine dispute over a fact that could affect the result and one side is entitled to judgment under the law.

The NBA argued that Richardson’s vaccine objection was not based on a sincerely held religious belief. The court denied summary judgment on that issue. Richardson submitted statements from two religious leaders and stated that his religious beliefs prevented him from receiving the vaccine. The NBA pointed to secular and political reasons Richardson had also expressed. Judge Cote held that the evidence created a genuine factual dispute for a jury and that the court could not resolve the sincerity question on summary judgment.

The NBA also argued that allowing an unvaccinated referee to work would have caused an undue hardship. The court held that the NBA showed no genuine factual dispute about undue hardship beginning no later than early December 2021. The court relied on evidence concerning the Omicron variant, the risks of infection and transmission, the close indoor interactions required by refereeing, the inability of referees to wear masks while officiating, the NBA’s medical advice, and the operational and financial consequences of postponing or rescheduling games. The court rejected Richardson’s arguments that the NBA was bound by the accommodations contemplated when the vaccination agreement was adopted, that testing was equally effective, or that the NBA had to calculate the precise risk numerically.

Expert testimony

The court granted the NBA’s motion to exclude the testimony and report of Richardson’s expert, Dr. Harvey Risch. Applying Federal Rule of Evidence 702 and the standards governing expert reliability, the court found that most of Dr. Risch’s opinions were irrelevant to the specific undue-hardship question. His report primarily criticized government management of the pandemic and vaccination policy rather than addressing the effects of allowing an unvaccinated referee to work for the NBA.

The court also found that portions of the report offered legal conclusions, relied on later or non-peer-reviewed studies, selectively characterized scientific research, or lacked a reliable foundation. It further concluded that the report risked confusing the jury about the information reasonably available to the NBA when it made its decision in late 2021.

Back pay and front pay

Richardson sought back pay and front pay. The court granted the NBA’s motion concerning those damages. It held that Richardson made no effort to seek other employment after he stopped working as an NBA referee and did not provide evidence from which a jury could calculate a damages award based on alternative employment. The court identified other potentially suitable work, including refereeing in other leagues, consulting, operating a referee camp or educational service, and basketball-related broadcasting. It therefore struck Richardson’s request for back and front pay.

Disposition

Judge Denise Cote denied Richardson’s motion for summary judgment. She granted the defendants’ motion to exclude Dr. Risch’s testimony and granted the defendants’ motion for summary judgment in part. Specifically, the defendants received summary judgment on Richardson’s Title VII claim for the period following early December 2021, because accommodating him as an unvaccinated referee would have imposed an undue hardship, and on his request for back and front pay. The opinion leaves a factual dispute concerning whether Richardson’s objection was based on a sincerely held religious belief.