Should Unvaccinated Persons Be Protected Against Discrimination?

In the last few months, certain states have enacted bans on mandatory Covid-19 vaccination. Some states have now gone further and attempted to ban discrimination on the basis of vaccination status. Such states include:

• Alabama – Schools and universities cannot require Covid-19 vaccines. State and local governments cannot prohibit vaccination as a condition of receiving government services, and bans businesses from refusing to serve someone based on their vaccine status.
• Florida – Businesses are banned from requiring proof of vaccination for service.

• Montana –Businesses and governmental entities are prohibited from refusing to serve or withholding goods from anyone based on their vaccination status or whether they have an “immunity passport.” Employers cannot refuse employment based on vaccination status.
• Tennessee – The Tennessee Department of Health is halting all adolescent vaccine outreach, even for vaccines not related to Covid-19.

Norwegian Cruise Line Holdings has filed a lawsuit against Florida’s ban claiming that the state law is preempted by federal regulations and violates the cruise liner’s First Amendment rights. Florida filed a lawsuit earlier this year against the Center for Disease Control for enacting regulations to require proof of vaccination.

The limits of these anti-vaccination discrimination laws have yet to be tested. Some cruise ships are beginning to require unvaccinated persons to carry Covid-19 insurance for entry. If Covid insurance violates these “discrimination” laws, then cruise ships may simply require everyone to carry Covid insurance, regardless of vaccination status.

What Is a Protected Characteristic?

The Civil Rights Act and most anti-discrimination laws prohibit discrimination based upon immutable and obvious traits. A trait is immutable if it cannot be easily changed by the individual. Race and gender cannot be easily changed and one’s race and gender are typically easily distinguished by looking at someone. As a result, most anti-discrimination laws protect race and gender. Other groups that fall into this category include color, national origin, and age.

Many anti-discrimination laws also protect groups that are constitutionally protected and/or have a strong public policy interest in protecting. The free exercise of religion is protected by the First Amendment and thus many anti-discrimination laws protect religious groups. Society also has a vested interest in protecting pregnancy women and immigrants to encourage the growth of communities. Disabled persons are also legally protected against discrimination so that the government doesn’t have the responsibility of paying for their care.

Can Unvaccinated Persons Be a Protected Characteristic?

Vaccination is unlikely to be considered an immutable trait or obvious trait. Vaccination status is easily changed by going to a vaccination site and getting the appropriate shots. Vaccination is also not readily obvious to the eye. Indeed, one’s vaccination status considered private medical data under HIPAA. Vaccination status as a trait is not on the same level as race or gender.

However, vaccination status could be a protected class if a person refuses to get a vaccination on the basis of his/her religion or has a disability that would inhibit them from safely taking a vaccine. Unvaccinated persons would have to be reasonably accommodated for their religious beliefs or their disability. The issue with most Covid-19 anti-vaxxers is that they refuse the simplest accommodation – to wear a mask when around other people. Since there is no religion or disability that prohibits mask wearing, many anti-vaxxers come across as more partisan than sincere about their religion or disability.

Moreover, vaccination status may be correlated with public safety. People who are unvaccinated by choice can endanger vulnerable persons, such as young children, elders, or people who are severally ill. While a grocery store might not have a large interest in vaccinated persons, daycare centers, cruise ships, and hospitals have a legitimate public safety reason to bar unvaccinated persons. In contrast, there is no recognizable public interest in barring people based on race, gender, sexual orientation, or color.

Anti-vaccination makes no sense as a protected characteristic. Protecting anti-vaxxers put others at risk of Covid-19 and other infectious diseases. Moreover, it is completely within the power of an anti-vaxxer to end the “discrimination” against him or her – just get the shot!

Do I Need an Attorney for Help with Discrimination?

You should consult with a skilled discrimination lawyers if you need to file a claim for discrimination. An employment law attorney can help you determine and assert your rights, gather evidence, and guide you through the process of filing a claim with the EEOC. Additionally, they can help you file a civil lawsuit against the employer, and represent you in any court proceedings.