Written by: Capt. Laura Cox and Capt. Sherry Walker
The Mandate
At 0730, on August 6, 2021, the phone rang. When I answered, I heard, “He did it, he went and did it.”
In May 2021, United Airlines management negotiated with its various unions offering employee incentives in the form of pay and/or vacation days to encourage employees to receive the COVID-19 vaccine. United’s agreement with the Air Line Pilot Association (ALPA) contained both incentives (up to 14 hours of pay) and punitive measures for those who chose not to be vaccinated.
Punitively, in an unprecedented move, the pilot union agreed to allow management to restrict certain destinations from unvaccinated pilots costing them thousands of dollars. More damning was the fact that United, alone, was granted the authority to determine the restricted destinations and was, therefore, able to add cities/countries, almost weekly. It did not matter that many destinations did not require air crew be vaccinated for entry as evidenced by that fact that other carriers’ unvaccinated crew came and went freely. In addition to dropping trips without pay that were awarded during monthly schedule preferencing, these pilots were blocked from picking up replacement work. Flight Attendants suffered the same but were also charged disciplinary attendance points.
Still, by late summer 2021, only about 60% of United employees were voluntarily vaccinated. United Airlines CEO Scott Kirby knew something needed to be done as he raced to be the first “fully-vaccinated” airline—a marketing strategy to convince the public to travel during that upcoming busy holiday travel season. Discovery documents later show that, motivated by financial markets rather than safety, Kirby went against the recommendations of his senior leadership. On August 6, 2021, Kirby imposed one of the strictest COVID-19 vaccine mandates in U.S. private industry telling his 60,000+ employees that if they did not comply, they would be terminated. Now, his employees were facing a September 27, 2021, deadline—be vaccinated or be terminated.
After the mandate was announced, thousands of employees across all departments began requesting Reasonable Accommodations under the Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA). To achieve total mandate compliance, United immediately began pressuring employees not to seek accommodations. In an internal “town hall” Kirby threatened employees to “be very careful” about requesting such accommodations because “few people” would “get through the medical and religious exemption process.” And Kirby derisively described such employees as “all [of a] sudden decid[ing] I’m really religious.” Making his plans clear, Kirby warned that employees requesting an accommodation were “putting [their] job on the line.”
The coercion campaign was only beginning. United sent postcards (broadcasting the vaccination status of its employees) through the U.S. postal system intending spouses read the warning that the unvaccinated would be terminated so as to pressure vaccine uptake. Kirby even toyed with placing stickers on the badges of the unvaccinated. Unsurprisingly, United’s lawyers shot down that idea, but HR employees were taken aback, exclaiming that these stickers are “like the scarlet letter…Oh my goodness. Who are we?” Still, by the accommodation submission deadline, August 31, and by United’s own admission, some 5,885 employees had requested mandate exemptions.
By Labor Day, United HR managers began responding to employees’ requests with probing and demeaning questions. They had heard Kirby’s message loudly and clearly and felt free to mock and criticize the faithful. One even suggested, “[t]hese people are probably…buying fake vaccine cards and adding it or filing a ‘religious exemption’…Our employees cannot be trusted.” Another criticized an employee seeking a religious accommodation, claiming that the employee “purchas[ed] a statue of [] Buddha from Amazon.” This would all be concerning if it were not true. But through United’s own testimony, these and even more harsh statements were made by HR representatives about their coworkers.
United’s reasonable accommodation process (RAP) was, itself, a form of coercion. By crafting a “purposefully vague” and impersonal electronic system that did not afford participants to submit both religious and medical accommodation requests, United held the upper hand. Further, by purposefully not responding to inquiries in a timely manner or by requiring short, 3-day response times, often over holidays or while employees were out of the country on flights, many missed deadlines or simply did not understand their rights and gave up. The September 27, 2021, deadline loomed ever closer.
Between the threat of indefinite, unpaid leave (effective termination), unending, often discriminatory, coercion from front-line managers, and Kirby in the media, approximately 96% of United employees either acquiesced, resigned or retired under duress, or were terminated. However, just over two thousand employees banded together, forming Airline Employees 4 Health Freedom.
Through the organization’s 501(c) 4 status, the employees funded litigation in the Northern District of Texas, Fifth Circuit defending their religious liberty and medical autonomy (Sambrano v. United Airlines). On September 23, 2021, United entered into a two-week agreement to stay the mandate. Not surprisingly, the airline violated that agreement the following day. And, over the next two months, United’s propaganda and last-minute legal decisions drove more to acquiesce, but the legal fight these two thousand individuals undertook is one for the history books.
Legal Battle
On September 21, 2021, under the expert leadership of Captain David Sambrano, a request for preliminary injunction was filed in the Northern District of Texas—Ft. Worth Division. After a series of hearings and stay orders, United modified its accommodation from unpaid leave to a draconian “masking and testing regime” applicable to employees deemed non-customer facing (non-flight crew). The affected could remain working, but only under the new, severely punitive policy.
These newly classified “non-customer facing employees” included ramp service agents, dispatchers, technicians, managers, and some customer service agents who were accommodated by being moved to a newly created position called “agent on demand,” whereby they answered customer inquiries via an iPad while locked in small—often closet-sized—spaces. All were subjected to draconian rules, isolated from co-workers, and prevented from accessing breakrooms and other employee work areas.
The accommodation required non-customer facing employees wear N95 respirators anytime on company property, even outdoors, when alone, and while in parking lots. Management ignored OSHA regulations governing the use of respirators including fit testing and oxygenation breaks. In fact, OSHA in the state of Virginia fined United for their punitive actions.
Additionally, these employees were required to test two times a week, at their own expense, and upload the results, even when on days off, on leaves such as FMLA, and vacation. Even single-day violations resulted in termination after only a one-warning system obviously designed to be punitive.
These employees were also harassed by coworkers and managers, daily. Many were prevented from accepting overtime and other special assignments. The most egregious actions happened at the hands of their coworkers who felt emboldened to discriminate and harass these faithful employees, both on company property and on internet forums.
United did nothing to styme the derogatory remarks. In fact, emboldened from the rhetoric of the CEO on the “morning shows,” some were even told by co-workers that they hoped they died from COVID. The overwhelming discrimination caused members to retire or resign under duress. Knowing what the entire country now knows regarding the effectiveness of the vaccine, one asks, “To what end?”
At the same time, due to the Sambrano litigation, United was forced to keep the pilots and flight attendants in the air. At one point, the company claimed it was losing millions of dollars every week due to the court’s order, going as far as to suggest that vaccinated pilots were refusing to fly with unvaccinated. When this was posted online in pilot discussion groups, the litigants received 500+ emails of support in less than 24 hours from vaccinated pilots stating they were happy to fly with their unvaccinated co-workers. Once again, United’s claims failed in court.
Through all the litigation in the fall of 2021, the faithful stayed together. Yet, their request for an emergency injunction was denied by Judge Pittman on November 8. However, one small victory was achieved. In his ruling, Federal Circuit Court Judge, Hon. Mark Pittman, concluded that the efforts by CEO Kirby and his managers were merely a pretext for a marketing campaign by which to convince the public to return to flying during the pandemic. In other words, all the discrimination, pain, and suffering were merely to improve United’s bottom line setting the groundwork for an appeal at the Fifth Circuit.
Awaiting their hearing, 350+ pilots, 700+ flight attendants and hundreds from other work groups were placed on indefinite, unpaid leave. Not only did they lose access to their accrued benefits, but United also denied access to retirement funds, other non-customer-facing jobs, insurance, and, in general, forced them into poverty.
Then, on February 17, 2022, the Fifth Circuit reversed the district court’s ruling, stating that the United group had, indeed, suffered irreparable harm. Therefore, the case was remanded back to Judge Pittman for further consideration, and as a result, on March 10, 2022, United announced that the pandemic receded enough that the workers could return to work on March 29, 2022, just in time for the summer flying schedule.
Of note are the words of Appellate Court Judge, Hon. James C. Ho, who wrote:
Imagine that your employer suddenly declares that he finds one of your religious beliefs offensive. It could be your view on abortion, marriage, or sexuality, or gender, or any number of other religious tenets. Your view has no economic impact whatsoever on the company. But it offends the sensibilities of the executives who populate the C-suite.
So, the company puts you on unpaid leave for an indefinite period of time. And the only way you can reclaim your job is to abandon your religious convictions—and to do so irreversibly.
Imagine further that you love your God—and you also love your family, who counts on you and your livelihood to survive.
Finally, imagine that, if you can’t get preliminary injunctive relief, you’ll have no choice but to sacrifice your faith, in order to avoid sacrificing your family.
Now ask yourself this question: What measure of damages would make you whole? Put another way: For how much would you sell your soul?
If the very thought of this question vexes or offends you, you’re not alone. For millions of Americans, you’d be hard-pressed to come up with a more obvious and compelling example of an incalculable, irreparable injury.
It has been three and a half long, hard-fought years. In June 2024, the Sambrano group was finally granted class. To date, they are one of the largest religious discrimination classes ever certified against a private employer. United, of course, appealed, and the case rests before the Fifth Circuit Court of Appeals. It is the belief of all AE4HF members that they will prevail.
Lessons Learned
Sambrano v. United Airlines teaches us that the reasonable accommodation process is a right to which every employee is entitled. You may have deep faith beliefs, faith that aligns with an established religion, attend an online prayer group, or simply know in your heart that your faith is strong. No employer has the right to discount your faith because you do not attend a formal church. At the same time, the ADA mandates that employers must accommodate those with disabilities. There are nuanced details, but the ADA is one of the most powerful protections available to disabled employees. Often, unions disregard both Title VII (faith protected rights) and your rights under the ADA or claim that defending your rights are outside of the union’s purview. Still, your rights exist.
No matter how badly one’s employer fights to deny you your rights, as an airline worker, the men and women of AE4HF stand with you and will help you. You are stronger standing with a group than as an individual, and we have become good at what we do.
United Airlines is not the only airline that discriminated against its employees due to their vaccine status. AE4HF proudly supports and provides services to the unvaccinated employees of Hawaiian Airlines and Kalitta Air. We track and assist the vaccine injured; those who were granted Conditional Job Offers (CJO) then held out of work due to their vaccine status; or who acquiesced to the mandates. We are collaborating with disabled pilots who were denied union representation or contractual improvements. We support individual airline workers who are navigating the RAP process in lieu of succumbing to DEI training that violates their faith. We help individual pilots discriminated against for their religious beliefs—most recently, this includes a Jewish pilot seeking an accommodation for facial hair due to his faith. We fight against age discrimination across the industry, maternity rights, and lobby for reasonable legislation that positively enhances the faith and careers of our members.
Over the last four years, the organization has filed amicus briefs in Groff v. DeJoy which overturned the legal precedent of de minimus harm, a concept that United relies heavily on in their defense in Sambrano. We also wrote in Brown v. Alaska, and Odell v. Kalitta. Our organization’s lessons are now proudly being used to help airline workers across the industry fight back against religious and medical discrimination.
Photo provided by AE4HF
One last footnote. While Sambrano v. United continues through the courts and may, very well, end up in the U.S. Supreme Court, the efforts to return our terminated coworkers and those forced to retire or resign will not end. At the same time, the fight for restitution for those placed on unpaid leave and those forced to endure the retaliatory “respirator and testing” regime will not end until all are made whole. Two more appeal briefs will be filed with the Fifth Circuit followed by a hearing late spring. To learn more watch the AE4HF promotional video below or visit www.AE4HF.org.
AE4HF Promotional Video
