Witham v. Hershey Company, The

Background

Hershey adopted a policy in August 2021 requiring certain employees, including Christopher Witham, to be fully vaccinated against COVID-19. Witham requested a religious accommodation based on his Catholic faith and his belief that the available vaccines were produced with or tested on human cells derived from direct abortions. He proposed periodic testing, self-monitoring, and personal protective equipment instead of vaccination. Hershey denied the request, stating that no accommodation would allow him to perform the essential functions of his job without creating an undue hardship or health risks. Hershey terminated Witham’s employment on January 21, 2022, based on his refusal to take the vaccine.

Witham asserted seven claims: religious discrimination and failure to accommodate under Title VII; religious discrimination and failure to accommodate under the Minnesota Human Rights Act; disability discrimination under the Americans with Disabilities Act; age discrimination under the Age Discrimination in Employment Act; race and sex discrimination under Title VII; and breach of contract.

Religious-discrimination claims

The court held that Witham plausibly alleged religious-discrimination claims under both Title VII and the Minnesota Human Rights Act. At the motion-to-dismiss stage, the court accepted the complaint’s factual allegations as true and drew reasonable inferences in Witham’s favor. The court found plausible allegations that Witham held a religious belief conflicting with Hershey’s vaccination requirement, informed Hershey of that conflict, and suffered termination for refusing to comply.

The court rejected Hershey’s argument that Witham’s objections were merely secular or personal. Although some of his allegations concerned the vaccines’ safety or effectiveness, his abortion-related objections were at least plausibly religious and were connected in the complaint to his Catholic faith. The court also found that Witham’s accommodation request gave Hershey sufficient notice of the specific abortion-related basis for his objections. Whether his objections were religious in nature was described as a fact-intensive question generally unsuitable for resolution on a motion to dismiss.

The court also allowed the Minnesota Human Rights Act claim to survive. The court noted conflicting decisions from judges in the District of Minnesota about whether that law requires employers to accommodate religious practices. With no controlling authority, Judge Tostrud followed the reasoning of a decision concluding that the Minnesota law requires reasonable religious accommodations.

Disability claim

The court dismissed the Americans with Disabilities Act claim. First, Witham had not exhausted his administrative remedies because his Equal Employment Opportunity Commission charges did not identify disability discrimination or describe disability-related discrimination. Second, even if the claim had been properly exhausted, the vaccination requirement was not an inquiry or examination into whether Witham had a disability or the nature or severity of a disability. Third, Witham did not allege that he had a physical or mental impairment substantially limiting a major life activity, had a record of such an impairment, or was regarded as having one. Being unvaccinated was not a disability under the statute.

Age, race, and sex claims

The court dismissed the age-, race-, and sex-discrimination claims. Witham relied on a 2020 statement by an unnamed communications director that there were “too many old white guys” at Hershey, a survey comment about the “old, white guy” demographic, and an allegation that Hershey replaced him with someone significantly younger, of a different race, and/or female. The court found no plausible connection between those allegations and the termination decision. The comments occurred roughly two years before the termination, were not alleged to have been made to or in Witham’s presence, and were not linked to the decision to terminate him. The allegation about his replacement was also treated as a bare conclusion without supporting facts.

Breach-of-contract claim

The court dismissed the breach-of-contract claim. Witham relied on Hershey’s alleged pledge not to make employment decisions based on protected characteristics. The complaint did not identify the source of that language or plausibly show that it was a definite offer forming a unilateral contract. In addition, Hershey was already legally required not to discriminate based on several of the listed characteristics, so its alleged promise did not provide the required consideration for a contract.

Disposition

Judge Eric C. Tostrud ordered that Hershey’s motion to dismiss be granted in part and denied in part. Counts III through VII of the complaint were dismissed without prejudice. The motion was denied in all other respects, leaving the Title VII and Minnesota Human Rights Act religious-discrimination claims in the case.