[00:00:01] Speaker 01:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 01:
I appreciate the early start.

[00:00:06] Speaker 01:
For those of you who are flying out of PDX today, the baggage system is down.

[00:00:11] Speaker 01:
So good luck if you're checking.

[00:00:15] Speaker 01:
So with that, we have one case on calendar today, Detweiler versus Mid-Columbia.

[00:00:20] Speaker 01:
All the other cases have either been deferred or submitted.

[00:00:24] Speaker 01:
Mr. McReynolds, come on up.

[00:00:36] Speaker 03:
May I proceed?

[00:00:39] Speaker 03:
You may.

[00:00:40] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:42] Speaker 03:
Matthew McReynolds on behalf of the Plaintiff Appellant, Sherry Detweiler.

[00:00:47] Speaker 03:
I'd like to reserve three minutes of my time for rebuttal.

[00:00:51] Speaker 03:
Very well.

[00:00:53] Speaker 03:
Affirming the decision below would depart from decades of this circuit's precedent strongly protecting religious liberty and the free exercise in Title VII context.

[00:01:05] Speaker 03:
It would also bring this circuit into direct conflict with five circuits that have spoken to nearly identical issues within just the past year.

[00:01:16] Speaker 03:
The essence of the holding below, that prayer, seeking God's guidance,

[00:01:23] Speaker 03:
in searching one's scriptures.

[00:01:25] Speaker 03:
is not religious enough to get past the Title VII prima facie threshold cannot be sustained.

[00:01:35] Speaker 03:
And I'd like to point the court most directly to your decision in the early 1980s in Callahan v. Woods, where this court explained in the free exercise context that religion and other philosophical and secular beliefs cannot be neatly compartmentalized.

[00:01:55] Speaker 03:
And we believe that that was overlooked by the district court here.

[00:02:00] Speaker 02:
I'd like to just briefly comment on- Can it really be as general, though, as saying, in this instance, my body is my temple, and anything that is deleterious to me violates my religious beliefs?

[00:02:17] Speaker 02:
It's so general and so attenuated, that's always going to get you passed a motion to dismiss?

[00:02:25] Speaker 03:
Not always, Your Honor.

[00:02:28] Speaker 03:
And I would respectfully disagree that I think our client, in the exhibits that were submitted with her first amended complaint and with her, I mean, her second amended complaint, which began at page 93 of the excerpts of record,

[00:02:48] Speaker 03:
that was more specific than that, began with, I am a Christian, and went through her daily practices of prayer and scripture reading.

[00:02:58] Speaker 03:
But I also think that it's really important to step back and acknowledge that the employer will still have the ability to contest her beliefs, which by the way it did not do during the

[00:03:11] Speaker 03:
accommodation and termination process itself.

[00:03:14] Speaker 03:
This is a post hoc rationalization.

[00:03:17] Speaker 03:
And you see that if you look at the exhibits that have been submitted, particularly page 96 of the record, page 102, it's all about the practicality of accommodation, which is of course uniquely suited for the discovery process and for the trier effect.

[00:03:39] Speaker 03:
So no, I don't believe it will

[00:03:41] Speaker 02:
What more is there to present?

[00:03:48] Speaker 02:
Your client was given leave to amend, and she amended, and added, I understand the prayer aspect to, I think, the pleading.

[00:03:58] Speaker 02:
But what more would discovery provide here?

[00:04:01] Speaker 03:
discovery would be the employer's opportunity to probe her beliefs in a way that they did not do during the initial process.

[00:04:16] Speaker 03:
Again, it's a post-hoc rationalization that we're dealing with here.

[00:04:20] Speaker 03:
But if I could briefly just touch on the six circuits that have spoken to this exact issue, I think the

[00:04:29] Speaker 03:
First Circuit, the Fourth Circuit, the Sixth, Seventh, and Eighth Circuits have really well addressed, in very similar context, what is and is not required in Title VII.

[00:04:44] Speaker 03:
The Sixth Circuit, in the lucky case that we've noted in our supplemental authorities, noted that that client, that plaintiff, prayed

[00:04:54] Speaker 03:
She sought God.

[00:04:55] Speaker 03:
She acted on her beliefs in a COVID vaccine-related context.

[00:05:02] Speaker 03:
And that was enough for Title VII.

[00:05:05] Speaker 03:
The Seventh Circuit, in agreement with that in the Passarello case, as well as others, the First Circuit in the Bazinet case and Thornton v. Ibsen, very well-reasoned, the Fourth Circuit in Barnett, and several others.

[00:05:21] Speaker 03:
The only outlier

[00:05:22] Speaker 03:
is the Third Circuit.

[00:05:24] Speaker 02:
Well, is it fair to say, and I understand you're looking at appellate decisions and district decisions are not presidential, as I know very well, but isn't it fair to say that the bulk of district court opinions in the Ninth Circuit have gone the other way?

[00:05:40] Speaker 03:
I don't know about the bulk of them, Your Honor.

[00:05:42] Speaker 03:
There certainly have been several that have, and there have been quite a few that have not.

[00:05:48] Speaker 03:
And so if you look at where most of them trace their decision to, a lot of them base their

[00:05:56] Speaker 03:
and some of the earlier decisions from Pennsylvania, the district courts in Pennsylvania, and the Third Circuit.

[00:06:02] Speaker 03:
And if you follow that reasoning all the way back, even within the Third Circuit, I don't think it stands up.

[00:06:10] Speaker 03:
It's not consistent with Wisconsin v. Oder, the Supreme Court's 1972 decision, which really was the genesis for a lot of it.

[00:06:18] Speaker 03:
It's not consistent with Africa v. Pennsylvania.

[00:06:20] Speaker 03:
which is the Third Circuit's 1981 decision.

[00:06:24] Speaker 03:
And I could explain that in a lot more detail if you'd like.

[00:06:27] Speaker 03:
But that's our position on that.

[00:06:30] Speaker 01:
So counsel, getting back to one of the questions that Judge Seaborg asked at the beginning, Judge Roevener and her dissent in the Seventh Circuit case effectively said if the rule that the plaintiffs wanted in that case would apply here, basically anything

[00:06:47] Speaker 01:
Would establish so I have a quick hypothetical for you.

[00:06:50] Speaker 01:
So if someone says my body's my temple mental health is very important to my body and working three days a week really causes me a lot of stress and So that that is mental health issues that buys my temple Therefore I have to be accommodated and I don't have to work three days a week.

[00:07:10] Speaker 01:
I only want to work one day a week Is that

[00:07:14] Speaker 01:
correct under the line that your client is seeking here?

[00:07:17] Speaker 03:
Yes and no.

[00:07:19] Speaker 03:
Depending on how well that plaintiff were to articulate her beliefs, I think she could potentially get past the minimal burden

[00:07:29] Speaker 03:
that Bolden-Harge from this court and others have said is the threshold for Title VII.

[00:07:35] Speaker 03:
But that's just to get past the prima facie.

[00:07:38] Speaker 03:
She would have real problems, I think, as many of these plaintiffs would, in the accommodation process itself.

[00:07:45] Speaker 03:
I think the employer would have a strong argument, most likely, that they would face an undue hardship.

[00:07:51] Speaker 01:
So you think that the concern that Judge Rovner raised could be dealt with post-12b6?

[00:07:59] Speaker 03:
I do, Your Honor, and I don't think we're riding on a blank slate here.

[00:08:03] Speaker 03:
I think the Title VII has set very broad parameters for what constitutes religion.

[00:08:12] Speaker 03:
And if you go back all the way to Supreme Court decisions like United States v. Seeger, which has influenced a lot of the later even Title VII decisions, you see exceedingly broad protection for religious freedom.

[00:08:28] Speaker 03:
That may conflict with what some of our policy choices would be, but it's the policy choice that Congress made.

[00:08:36] Speaker 03:
And I think the Seventh Circuit did a good job of reasoning that out in the Passarello case in particular.

[00:08:45] Speaker 01:
You have about two minutes left.

[00:08:46] Speaker 01:
Would you like to reserve?

[00:08:48] Speaker 01:
I would.

[00:08:48] Speaker 01:
And Ms.

[00:08:49] Speaker 01:
Dodds, if we can give them three minutes.

[00:08:51] Speaker 01:
So we're going to give you the minute back because we asked you a lot of questions.

[00:09:09] Speaker 00:
Good morning, your honors, and may it please the court.

[00:09:11] Speaker 00:
My name is Greg Lockwood, and I'm here for the appellees, Mid-Columbian Medical Center and Sherry McCall.

[00:09:17] Speaker 00:
The issue today before you is a narrow one.

[00:09:20] Speaker 00:
It's whether or not the district court correctly decided that an objection to using a nasal swab was properly classified as a personal preference or a medical scientific belief instead of a religious belief.

[00:09:35] Speaker 00:
We believe that the court did so correctly and that you should affirm.

[00:09:41] Speaker 00:
The pleading standard here is the key thing in this case.

[00:09:45] Speaker 04:
We don't have a lot of time, so OK.

[00:09:48] Speaker 04:
Do you think that the other circuit's decisions about vaccination where you're getting a shot are distinguishable or you just think they're wrong?

[00:09:59] Speaker 00:
Both.

[00:10:00] Speaker 00:
I think that in general, when we're talking about the vaccination exemption, we're talking about generally objections to abortion directly tied to Christianity.

[00:10:12] Speaker 04:
Right, but my understanding was at least some of those were that it was being used, that they thought that the

[00:10:18] Speaker 04:
a vaccine was created using aborted babies.

[00:10:23] Speaker 04:
And there was a factual dispute about whether that was true.

[00:10:26] Speaker 04:
And in fact, if you look at some of the decisions in the district courts, you're wrong about that.

[00:10:33] Speaker 04:
And certainly some of the defendants were saying, you're just wrong about that.

[00:10:36] Speaker 04:
So I didn't see how that's different because on one hand, you may have a right or wrong

[00:10:41] Speaker 04:
factual view about this underlying thing that ends up feeding into your religious view about the morality of abortion.

[00:10:49] Speaker 04:
And then here you have somebody's right or wrong views about whether or not this is carcinogenic and bad for you that feeds into their

[00:10:55] Speaker 04:
religious views about doing bad things to their bodies.

[00:10:59] Speaker 04:
So it seems to me those two things seem pretty similar.

[00:11:03] Speaker 00:
And respectfully, Your Honor, I disagree with that because, again, those are situations in which the religion is deciding that abortion is bad and association with abortion is bad.

[00:11:13] Speaker 00:
Those plaintiffs pled that their objections were based on the abortion which directly conflicted with those religious beliefs.

[00:11:22] Speaker 00:
Here that's not the case.

[00:11:23] Speaker 00:
Here what we're talking about is a general statement that my body is a temple and that I can't defile it.

[00:11:29] Speaker 00:
then instead of going to scripture, we go to the science.

[00:11:34] Speaker 00:
We go to the NIH.

[00:11:36] Speaker 00:
We go to the FDA.

[00:11:38] Speaker 04:
So you'd say, instead of my body as a temple, you'd say, I think abortion is morally wrong and have religious objections to abortion.

[00:11:47] Speaker 04:
I think this medicine was made using an abortion procedure, but that's a factual question.

[00:11:54] Speaker 04:
You could call it a scientific question.

[00:11:56] Speaker 04:
It's a question that one could argue is not itself religious.

[00:12:00] Speaker 04:
Whether or not it's actually factually true that it's made using abortion, abortive babies, is something in theory you could verify and figure out.

[00:12:09] Speaker 04:
And so why is that since since you have a religious objection that travels through a factual thing for the, for a lot of these people's vaccination objection, why is that any different?

[00:12:20] Speaker 00:
Because the Iqbal Twambli standard still applies.

[00:12:25] Speaker 00:
You have to make a plausible belief, even under bold and harsh.

[00:12:28] Speaker 00:
The plaintiff still has the duty to make a plausible belief that they have a religious belief, religious rather than secular, and that that belief conflicts with the religion.

[00:12:37] Speaker 00:
Now, testing is completely consistent with protecting your body, keeping it as a temple.

[00:12:43] Speaker 00:
She then has to go to science and therefore her belief about the alleged harm is entirely derivative on the science that she cites and If you look at the science that she actually cites those articles in the links in her letter They don't really say what she asserts that they say and so that sort of calling the question that

[00:13:06] Speaker 02:
fairly early in the process, the pleading stage.

[00:13:09] Speaker 02:
I mean, that is something that can be fleshed out.

[00:13:13] Speaker 02:
And your argument may well prevail that it really is a scientific issue and not a religious one.

[00:13:18] Speaker 02:
But do we know that from the pleadings?

[00:13:21] Speaker 02:
In other words, aren't you sort of making some assumptions about what she's saying is the basis of her beliefs?

[00:13:28] Speaker 00:
Well, Your Honor, respectfully, I don't think that it's too early, because she had at least eight times to properly frame this in terms of her religion.

[00:13:34] Speaker 00:
And each time, the religious belief, and if you look at her own words in her religious accommodation request, as well as her complaint, it's about concern with my bodily harm.

[00:13:45] Speaker 00:
To determine the bodily harm, she has to go to science.

[00:13:48] Speaker 00:
My client does not dispute her.

[00:13:50] Speaker 04:
So I think we all understand this sort of thing.

[00:13:53] Speaker 04:
The challenge here is, is your position then that any time you've got

[00:13:58] Speaker 04:
what you would characterize as a religious view, and that religious view creates a framework by which you make a decision.

[00:14:06] Speaker 04:
And then you plug that into a factual matrix, your belief about how the world works.

[00:14:12] Speaker 04:
You could call it scientific or whatever.

[00:14:14] Speaker 04:
And is your view that whenever you do that, then you do not have protection if it's a mix.

[00:14:22] Speaker 04:
Another way of putting it is if it's a mixture.

[00:14:25] Speaker 04:
Because you don't disagree, I don't think, if I remember reading your briefs, that there is a religious component to her beliefs here.

[00:14:32] Speaker 04:
You're not saying she's not being sincere about her religious views about the sanctity of her body and all that stuff.

[00:14:38] Speaker 04:
You're just saying, yeah, but

[00:14:40] Speaker 04:
Her view that this is bad for her body is scientifically wrong, and that's a scientific view.

[00:14:45] Speaker 04:
So it's kind of a two, it's secular and science.

[00:14:47] Speaker 04:
Is your view that any time that's the case that Title VII doesn't apply?

[00:14:52] Speaker 00:
Your Honor, we're going to talk about the facts of this case.

[00:14:57] Speaker 00:
And here, her own belief goes to, is this bad for me?

[00:15:02] Speaker 00:
And then she's got to go to science.

[00:15:04] Speaker 00:
Our dispute is not with her religious belief, it's with her scientific belief.

[00:15:08] Speaker 04:
So I'm trying to figure out what you're saying.

[00:15:09] Speaker 04:
If you're saying it's a specific order, one view and then the other follows, you could always switch them.

[00:15:14] Speaker 04:
You could say, it starts with our most fundamental view is I shouldn't do bad things to my body because God says I shouldn't.

[00:15:21] Speaker 04:
That's religious.

[00:15:22] Speaker 04:
And then you ask yourself, how does that apply in this specific situation?

[00:15:26] Speaker 04:
So I don't know that the order matters.

[00:15:29] Speaker 04:
I don't think one is more fundamental than the other, it's just that it's

[00:15:33] Speaker 04:
Let's just assume for a second that it just takes both.

[00:15:36] Speaker 04:
It's a religious view that's informed by what you would call a secular thing.

[00:15:40] Speaker 04:
And when that's the case, kind of putting aside the exact facts of this case, is your view that Title VII doesn't apply because it's traveling through, whether it's before or after, a secular understanding of how the world works?

[00:15:55] Speaker 00:
What we're talking about is where the actual conflict lies.

[00:15:58] Speaker 00:
You have to have that conflict as part of the pleading standard.

[00:16:01] Speaker 00:
And here, the conflict relies on the decision about science.

[00:16:04] Speaker 00:
This is a decision that she's making based on her research into science, not scripture.

[00:16:09] Speaker 00:
And she is making this determination based on scientific sites.

[00:16:13] Speaker 04:
No, I know.

[00:16:14] Speaker 04:
Listen to my question a second if you don't mind.

[00:16:17] Speaker 04:
I'm kind of conceding that for at least the sake of argument here.

[00:16:19] Speaker 04:
Let's assume for a second that a significant part of her decision-making is driven by something that's not religion.

[00:16:27] Speaker 04:
But you also agree that part of it is driven by something that's religion.

[00:16:30] Speaker 04:
What is your view of when you have a mixed thing like that?

[00:16:34] Speaker 04:
Is your view that if part of it is non-religious slash secular slash scientific, whatever label you want to put on it, then Title VII doesn't apply?

[00:16:43] Speaker 04:
Is that your argument?

[00:16:46] Speaker 00:
First, Your Honor, I think you should look to where the conflict is.

[00:16:48] Speaker 00:
And here the conflict is about whether these swabs are deleterious to the plaintiff's health.

[00:16:53] Speaker 04:
And I think... Well, no, like if she didn't have a religious view, that's just the way you're carrying it.

[00:16:57] Speaker 04:
If she didn't have a religious view that she shouldn't do bad things to her body, then there'd be no conflict there either.

[00:17:02] Speaker 04:
Like you could characterize a conflict in being in either one of those two categories.

[00:17:07] Speaker 00:
I don't think that that's necessarily true because I think that there are situations where religions assert that certain things are deleterious to your body or you should not be doing certain things.

[00:17:15] Speaker 04:
It's explicit either from a faith leader or from... So that's just another way of saying, as long as it's purely religious, as long as God told me, don't get the swab, and I'm not basing it on any view of, then it's okay.

[00:17:28] Speaker 04:
But as soon as you have a partially religious and partially non-religious, then

[00:17:35] Speaker 04:
Now Title VII doesn't apply.

[00:17:37] Speaker 04:
It seems to me that's what your position is.

[00:17:38] Speaker 04:
I'm just trying to be clear if I'm misunderstanding some part of that.

[00:17:42] Speaker 00:
Your Honor, I believe it's a fact-specific inquiry based on what's alleged, and what the religious belief is, and whether it's actually a religious belief or a secular belief.

[00:17:52] Speaker 00:
That's element one.

[00:17:53] Speaker 00:
And then two, whether the conflict between the employer's policy is with the secular belief or the religious belief.

[00:18:00] Speaker 00:
And here, what we're talking about is a conflict on the secular belief.

[00:18:03] Speaker 00:
And again, this is an occupational health and safety standard promulgated by the states with tests that were so ever-present that they were sent to all of us in the mail by the federal government.

[00:18:14] Speaker 00:
This all goes into the Iqbal Twombly standards of what's plausible.

[00:18:18] Speaker 00:
And Your Honors can use case context, judicial experience, and common sense to determine what's plausible.

[00:18:25] Speaker 00:
and where the dispute actually lies.

[00:18:28] Speaker 00:
And here, I just don't think that plaintiff met the mark.

[00:18:31] Speaker 04:
I think the slippery slope argument that... What if a person was right and they had a very scientific view of something, but it turned out that scientific view was right, mixed with a religious view like here.

[00:18:45] Speaker 04:
I shouldn't do bad things to my body.

[00:18:46] Speaker 04:
I think this thing's bad for me.

[00:18:48] Speaker 04:
Science says it's not.

[00:18:49] Speaker 04:
Turns out eggs are actually bad for you or good for you, whatever.

[00:18:54] Speaker 04:
Would that be protected under Title VII?

[00:18:56] Speaker 04:
So does it turn on whether or not, if you have a correct scientific understanding coupled with a religious view, is that protected by Title VII?

[00:19:04] Speaker 00:
So secular beliefs are typically not protected.

[00:19:07] Speaker 00:
This course defined them in Tiano as medical, economic, political, and social preferences.

[00:19:13] Speaker 04:
So then, so your argument is if any part of it is secular, that your decision-making travels through, then that makes it not protected by Title VII?

[00:19:21] Speaker 00:
Not necessarily.

[00:19:22] Speaker 00:
I think that it hinges on what the belief is and where the conflict is.

[00:19:26] Speaker 00:
And that's depending on what's actually alleged.

[00:19:28] Speaker 00:
Here, what we're talking about is her allegation that I'm concerned with my bodily harm.

[00:19:32] Speaker 00:
She even makes a statement in her accommodation request that because it might harm me, I have made the decision that I'm not going to get it.

[00:19:41] Speaker 00:
So it swings on that bodily harm thing, not the religious concern.

[00:19:46] Speaker 00:
And again, just to go to the slippery slope thing real quick, because I understand that I'm running out of time.

[00:19:51] Speaker 00:
Courts, especially in the Third Circuit, have been concerned about this slippery slope.

[00:19:57] Speaker 00:
The Third Circuit warned against a plaintiff using a religious claim as a blanket privilege and cloaked religious significance with a secular belief.

[00:20:10] Speaker 04:
I know we don't have it, but the slippery slope thing.

[00:20:13] Speaker 04:
You go to hotels, I assume, right, with pools?

[00:20:18] Speaker 00:
Yes, sir.

[00:20:18] Speaker 04:
And they always have those machines that sit beside the pool, right?

[00:20:22] Speaker 04:
And when I was a kid, I was like, why do they have those machines?

[00:20:26] Speaker 04:
And I now understand, because now I'm a judge, and with the ADA, they have those machines so that they don't get sued, because they have to have those machines under the ADA.

[00:20:35] Speaker 04:
But I never see those machines being used at all, lower people that have disabilities in the pool.

[00:20:40] Speaker 04:
And there's a lot about the ADA that just seems to be, that I think if you said this, it just doesn't seem to make economic sense, it doesn't seem to, but it's what the law requires, right?

[00:20:49] Speaker 04:
So I'm struggling a little bit to, if the argument is here, wow, this would just be really intrusive and require, if that's what the law requires, then how is that different than say the ADA that may require things that we may think policy-wise are just really intrusive and made the decision in a different place than we would want?

[00:21:09] Speaker 04:
Is it our job to fix that, or?

[00:21:11] Speaker 00:
Your Honor, it's a pleading standard case, so we've got to look at the specific facts.

[00:21:15] Speaker 00:
But I think you bring up the ADA in an interesting way, because actually, plaintiffs, in this case, made an ADA claim as part of her religious accommodation request.

[00:21:26] Speaker 00:
That's it.

[00:21:26] Speaker 00:
page ER 99 through 101.

[00:21:30] Speaker 00:
And in that, she expressed concerns about the nasal swabs affecting her sinitis, as well as nosebleeds, expressing other kind of physical concerns, rather than religious ones that should be entitled to protection under the rule.

[00:21:47] Speaker 00:
And that's all to say that employment laws in this country are part of a large framework, both state and federal, that protect all sorts of different things.

[00:21:55] Speaker 00:
So, if you say that this isn't sufficient for a religious claim, which I think you should and which I think the circuit law supports, that doesn't keep her out of court.

[00:22:04] Speaker 00:
She can make an ADA claim.

[00:22:06] Speaker 00:
She can make an EEOC claim based on whistleblowing for warning of the hazards of these swaps.

[00:22:12] Speaker 00:
She could go to the FDA.

[00:22:14] Speaker 00:
She could go to OSHA, Oregon, or federal to address her specific concerns with the bodily harm.

[00:22:20] Speaker 00:
And that's what makes this case different.

[00:22:23] Speaker 00:
And that's why this really isn't a religious claim.

[00:22:26] Speaker 00:
And she doesn't plead it as a religious claim.

[00:22:28] Speaker 00:
And that's among the reasons why you should affirm.

[00:22:31] Speaker 00:
And I'm glad to address any other questions, but I see that I'm over my time.

[00:22:36] Speaker 01:
Thank you, counsel, very much.

[00:22:37] Speaker 01:
Mr. McReynolds, we're going to give you three minutes, OK?

[00:22:46] Speaker 03:
Thank you.

[00:22:48] Speaker 03:
So we've just heard quite a bit of speculation and we've heard about slippery slopes.

[00:22:54] Speaker 03:
What we haven't heard is about statutory interpretation.

[00:22:57] Speaker 03:
And I think that's one of the key failings in the Third Circuit's analysis is that it really gets away from statutory interpretation.

[00:23:07] Speaker 03:
And what this court noted all the way back in Heller versus Abbott-O-Co,

[00:23:11] Speaker 04:
And Third Circuit, you mean the McDowell case?

[00:23:13] Speaker 04:
Is that the case we're talking about?

[00:23:14] Speaker 03:
I do mean McDowell specifically.

[00:23:16] Speaker 03:
There is the Gatto case that my friends on the other side have brought forward as well.

[00:23:20] Speaker 03:
But yes, I'm thinking of McDowell specifically.

[00:23:24] Speaker 03:
And so all the way back in Heller v. Abadoco, this court emphasized, and ever since, through Bolden-Harge, through the Kean v. Sitting County of San Francisco cases more recently, has emphasized the broad reach of Title VII.

[00:23:39] Speaker 03:
That is a policy decision that Congress made.

[00:23:43] Speaker 03:
I would just like to point out one other thing.

[00:23:45] Speaker 03:
And that is that if the court is looking for a narrower path, if you will, that may be narrower than, say, what the Seventh Circuit has laid out in Passarello, I think what my friends on the other side have brought out in their supplemental authorities with the most recent Sixth Circuit and Eighth Circuit cases is telling.

[00:24:09] Speaker 03:
And the Sixth Circuit, after they decided Lucky and Sturgill, they also decided the Cale case that my friends had mentioned.

[00:24:17] Speaker 03:
And the key distinction between there and here, which is the only case from those five circuits I'm aware of where they affirmed dismissal on a 12b, was that the plaintiff had identified that her body was a temple,

[00:24:34] Speaker 03:
and she rejected testing on that basis.

[00:24:38] Speaker 03:
And the Eighth Circuit looked at that and said, well, you've said this is an intrusion into your temple, but what about saliva testing?

[00:24:48] Speaker 03:
How is that an intrusion into your temple?

[00:24:52] Speaker 03:
And that's exactly what our client requested in this case, was saliva testing that would comport with their beliefs.

[00:25:01] Speaker 03:
Same thing in the

[00:25:02] Speaker 03:
the other Sixth Circuit case that my friends brought forward, DeVore versus the University of Kentucky.

[00:25:09] Speaker 03:
That was one of the key distinctions.

[00:25:11] Speaker 03:
Another one was that, again, that plaintiff had been offered saliva testing as an alternative to swab testing, and she rejected it.

[00:25:21] Speaker 03:
If that had been offered to our client here, it would have satisfied her beliefs.

[00:25:27] Speaker 02:
The employer had a reason why the saliva testing

[00:25:29] Speaker 02:
wouldn't be an alternative because it took too long to get the results, wasn't it?

[00:25:36] Speaker 03:
That is a factual issue that's factually disputed.

[00:25:40] Speaker 03:
That is just a prime candidate for discovery and for exploration in the next stage of this case.

[00:25:49] Speaker 03:
So in conclusion, would urge the court to

[00:25:54] Speaker 03:
Consider the ramifications of going a very different direction than this circuit has gone in the past.

[00:26:00] Speaker 03:
Would urge you to compare the well-reasoned opinions from the first, fourth, sixth, seventh, and eighth circuits with the decisions of the third circuit and side with the majority of the circuits on this.

[00:26:16] Speaker 03:
If there's nothing further else, thank you.

[00:26:19] Speaker 01:
Thank you, counsel.

[00:26:20] Speaker 01:
Thanks to both of you for your briefing and argument in this very interesting case.

[00:26:24] Speaker 01:
It's been an interesting week.

[00:26:25] Speaker 01:
Judge Seaborg, Chief Judge Seaborg, thank you for stepping up to the plate and helping us out.

[00:26:32] Speaker 01:
And we are adjourned.

[00:26:33] Speaker 01:
Thank you, everybody.