EXCLUSIVE — United Airlines may be forced to pay upwards of $1 billion after a federal court ruled to grant nationwide class action status to over 2,200 employees who were placed on unpaid leave for choosing not to get vaccinated against COVID-19 during the pandemic.
A judge in the Northern District of Texas, fifth circuit, ruled on Friday that all United Airlines employees put on unpaid leave despite having a religious exemption to the vaccine can join Sambrano v. United Airlines, making the case one of the largest religious discrimination class action lawsuits in history.
“I’ve never seen anything this big,” Sherry Walker, co-founder of Airline Employees for Health Freedom, told the Washington Examiner. Walker is one of 2,211 class members on the lawsuit.
Allegations of ‘abuse’ and ‘retaliation’
At first, all unvaccinated employees were placed on indefinite unpaid leave. After the lawsuit was initially filed in 2021, United Airlines amended its policy to only place “customer facing” employees (those who interact with patrons) on unpaid leave, while “non-customer facing” employees were given a “mask and test” mandate.
The company’s “mask and test” mandate required unvaccinated “non-customer facing” employees to wear an N95 respiratory mask at all times, even though more breathable cloth masks were allowed elsewhere. The mask mandate was required when employees were outside, even in the Texas heat, and while on vacation, and required the unvaccinated to eat alone.
Walker cited two examples of airline employees who passed out while wearing the N95 masks, including one where an employee was “in the belly of the plane” and scraped his head on the ground when he lost consciousness.
In 2022, Virginia’s Department of Labor and Industry fined United Airlines $8,460 for one “serious” and one “other-than-serious” violation stemming from the N95 mandate.
Unvaccinated employees said they were also subject to “abuse and harassment” from coworkers stemming from the “scarlet letter policy” of having to wear a mask, thus identifying oneself as unvaccinated. David Castillo, an employee from Texas, is one plaintiff who faced repeated verbal attacks from his peers.
A more aggressive policy was also proposed by United Airlines CEO Scott Kirby, according to a case briefing obtained by the Washington Examiner. Kirby allegedly tried to implement a policy where the unvaccinated would have to put a sticker on their badge identifying them as someone who received a vaccine accommodation to work, but it failed.
The plaintiffs believe they were being retaliated against by United Airlines due to comments Kirby and human resources officials made expressing distrust of employees seeking religious exemptions and because Kirby pushed for more severe punishments for unvaccinated employees while forgiving disciplinary points for vaccinated employees, per the lawsuit.
Kirby expressed concern about employees “all [of a] sudden decid[ing] I’m really religious” in order to get out of taking the COVID-19 vaccine and said that those who chose not to get vaccinated were “putting [their] job on the line” in communications revealed in a press briefing.
United Airlines declined to comment on the matter.
Kirby’s ‘coercion’ of employees
Kirby announced the mandate without letting his executive team know beforehand, according to the lawsuit, despite Vice President of Human Resources Services Kirk Limacher’s initial objection that it was unnecessary.
The plaintiffs allege that Kirby pushed so hard to “coerce” employees to get vaccinated “for marketing purposes,” namely, to be able to boast about being the first airline to implement a vaccine mandate and to have a 100% vaccination rate.
“United CEO Scott Kirby has engaged in a despicable war against his own employees to unlawfully harass them for no other reason than virtue signaling and a marketing campaign,” Mark Paoletta, an attorney for the plaintiffs, told the Washington Examiner.
“As confirmed by United’s own health experts,” he continued, “Kirby had no public health or safety reason to impose these draconian and humiliating measures that sought to illegally force United’s employees to violate their faith or put their health at risk as a condition for keeping their job.”
In addition to Kirby’s failed attempt to enforce visual labels on unvaccinated employees, the United Airlines CEO allegedly requested to make his proposed “mask and test” policy “sound very serious,” requesting that employees be “automatic[ally] terminat[ed]” after just one violation. This effort failed when Kirby was reminded by HR that his policy would violate collective bargaining agreements.
The company also sent out postcards with big, bold red letters notifying employees who were not vaccine-compliant that they would be terminated if they did not comply. Limacher admitted these were meant to be seen by the spouses of employees.
Upon being asked by Visa’s CEO if he thought his company would lose many employees over the mandate, Kirby said he thought that was unlikely “because the jobs [at United] are just too good to leave,” according to a case briefing.
“Kirby’s heartless and thuggish conduct has hurt and damaged thousands of good people’s lives and careers, and Kirby and United should be held accountable in this litigation and in the court of public opinion,” Paoletta said.
A safety ‘double standard’
People familiar with the case called out a “double standard” of the company being willing to excuse disciplinary points for the vaccinated but not the unvaccinated, with no safety reason given. They also pointed to how the cabin of an airplane is touted as being incredibly sanitary, which makes it even less likely for an unvaccinated person to contract COVID-19.
Kirby had been warned by his vice president of HR services that a mandate was unnecessary from a safety standpoint as most employees were already vaccinated and most cases of infection came from outside of work.
The N95 mask mandate was additionally unnecessary for safety, based on CDC guidelines. However, Walker, the Airline Employees for Health Freedom co-founder, said people have been injured as a result of the mandate.
“United Airlines is more worried about diversity, equity, and inclusion than [it is about] safety,” Walker said. She pointed to the airline getting “hammered by the FAA” earlier this year due to safety mishaps, but listed a number of DEI initiatives funded by the company.
Big decisions loom: What’s next?
The court ruled that only “customer-facing” employees with a religious exemption could be included in the lawsuit, denying the plaintiff’s motion to include those with medical exemptions and those who were subjected to the “mask and test” mandate.
Both sides have a big decision to make before the July 5 deadline to appeal. The plaintiffs must decide whether to fight to include the other two groups, which could greatly increase the number of class members. According to the court decision obtained by the Washington Examiner, 1,078 employees were put under the “mask and test” mandate.
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According to Walker, the next step is for the case to go to trial. The judge may attempt one more round of arbitration, however, where the goal would be to agree on a settlement before trial.
If the jury rules I favor of the plaintiffs, each member of the class action lawsuit would be entitled to punitive damages in addition to back pay. While a jury is not limited in its award, using the EEOC minimum standard for punitive damages of $300,000 per person applied when they bring action against an employer, United Airlines could conservatively be on the hook for $663 million, or roughly $987 million if the employees who were forced to wear respirators were allowed to join.
