Lowe v. Mills

United States Court of Appeals
For the First Circuit
No. 22-1710

ALICIA LOWE; JENNIFER BARBALIAS; GARTH BERENYI; DEBRA CHALMERS;
NICOLE GIROUX; ADAM JONES; NATALIE SALAVARRIA,

Plaintiffs, Appellants,

v.

JANET T. MILLS, in her official capacity as Governor of the
State of Maine; JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human
Services; NANCY BEARDSLEY,* in her official capacity as Acting
Director of the Maine Center for Disease Control and Prevention;
MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS
HEALTHCARE LLC; MAINEGENERAL HEALTH; NORTHERN LIGHT EASTERN
MAINE MEDICAL CENTER,

Defendants, Appellees,

MTM ACQUISITION, INC., d/b/a Portland Press Herald/Maine Sunday
Telegram, Kennebec Journal, and Morning Sentinel; SJ
ACQUISITION, INC., d/b/a Sun Journal,

Intervenors.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Montecalvo, Selya, and Lynch,
Circuit Judges.

* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Nancy Beardsley has been substituted for Nirav D. Shah
as defendant-appellee.
 Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam,
Daniel J. Schmid, and Liberty Counsel were on brief, for
appellants.
Kimberly L. Patwardhan, Assistant Attorney General, with whom
Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy
Attorney General, Chief, Litigation Division, were on brief, for
appellees Janet T. Mills, Jeanne M. Lambrew, and Nancy Beardsley.
James R. Erwin, Katharine I. Rand, Katherine L. Porter, and
Pierce Atwood LLP on brief for appellees MaineHealth, Genesis
HealthCare of Maine, LLC, Genesis HealthCare LLC, and MaineGeneral
Health.
Ryan P. Dumais and Eaton Peabody on brief for appellee
Northern Light Eastern Maine Medical Center.

May 25, 2023
 LYNCH, Circuit Judge. Since 2021, Maine has required

certain healthcare facilities to ensure that their non-remote

workers are vaccinated against COVID-19. See 10-144-264 Me. Code

R. § 2(A)(7); see also Me. Rev. Stat. Ann. tit. 22, § 802. We

refer to this requirement as the "Mandate." The Mandate permits

workers to seek exemptions for medical reasons, but not for

religious ones. See Me. Rev. Stat. Ann. tit. 22, § 802(4-B);

10-144-264 Me. Code R. § 3. Facilities that do not comply with

the Mandate are subject to penalties, including fines and license

suspension. See Me. Rev. Stat. Ann. tit. 22, § 804; 10-144-264

Me. Code R. § 7(G).

The plaintiffs in this case are seven Maine healthcare

workers who allege that their sincerely held religious beliefs

prevent them from receiving any of the available COVID-19 vaccines.

After Maine introduced the Mandate, the plaintiffs requested that

their employers -- healthcare providers Genesis HealthCare of

Maine, LLC; Genesis HealthCare LLC; MaineGeneral Health;

MaineHealth; and Northern Light Eastern Maine Medical Center

(collectively, the "Providers") -- exempt them from the

vaccination requirement based on these religious beliefs. The

Providers denied the requests, explaining that religious

exemptions were not available under state law. The plaintiffs'

employment was later terminated after they refused to accept COVID-

19 vaccination.

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 The plaintiffs filed this suit against three Maine

government officials in their official capacities (we refer to

them collectively as the "State") and the Providers. The claims

against the State assert, among other things, that the Mandate, by

allowing medical but not religious exemptions, violates the Free

Exercise and Equal Protection Clauses of the U.S. Constitution.

Against the Providers, the plaintiffs brought, inter alia, claims

under Title VII of the Civil Rights Act of 1964, contending that

the Providers' refusal to accommodate the plaintiffs' religious

beliefs by exempting them from the vaccination requirement

amounted to unlawful employment discrimination on the basis of

religion. The district court dismissed the complaint. See

Lowe v. Mills, No. 21-cv-00242, 2022 WL 3542187, at *1 (D. Me.

Aug. 18, 2022).

We agree with the district court that the complaint's

factual allegations establish that violating the Mandate in order

to provide the plaintiffs' requested accommodation would have

caused undue hardship for the Providers, and so affirm the

dismissal of the Title VII claims.1 But we conclude that the

plaintiffs' complaint states claims for relief under the Free

Exercise and Equal Protection Clauses, as it is plausible, based

on the plaintiffs' allegations and in the absence of further

1 We also affirm the dismissal of several other claims
that the plaintiffs do not discuss on appeal.

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factual development, that the Mandate treats comparable secular

and religious activity dissimilarly without adequate

justification. We affirm in part and reverse in part.

I.

A.

Maine law has required that certain licensed healthcare

facilities ensure that their employees are vaccinated against

various diseases since 1989.2 See 1989 Me. Laws ch. 487, § 11

(mandating that employers require proof of either immunization

against or serologic immunity to measles and rubella). Since 2001,

the Maine Department of Health and Human Services (the

"Department") has had regulatory authority to designate by rule

diseases against which healthcare employers must require proof of

immunization. See 2001 Me. Laws ch. 185, § 2. Prior to the COVID-

19 pandemic, the Department required vaccination for measles,

mumps, rubella, chickenpox, hepatitis B, and influenza. 10-144-

264 Me. Code R. §§ 1(F), 2(A) (2021) (amended Aug. 2021). The

plaintiffs do not challenge the requirement of vaccination against

these diseases.

2 Current law specifies that the vaccination requirements
apply to "licensed nursing facilit[ies], residential care
facilit[ies], intermediate care facilit[ies] for persons with
intellectual disabilities, multi-level health care facilit[ies],
hospital[s,] [and] home health agenc[ies]." Me. Rev. Stat. Ann.
tit. 22, § 802(4-A)(A); accord 10-144-264 Me. Code R. § 1(E).

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 Until 2019, state law allowed exemptions from

healthcare-worker vaccination requirements for most diseases under

three circumstances: when an employee submitted (1) "a physician's

written statement that immunization against one or more diseases

may be medically inadvisable," or a written statement that

vaccination was contrary to a "sincere [(2)] religious or

[(3)] philosophical belief."3 Me. Rev. Stat. Ann. tit. 22,

§ 802(4-B)(A)-(B) (2019) (amended 2019). In 2019, Maine's

legislature modified these exemptions. See 2019 Me. Laws ch. 154,

§§ 8-9. First, it amended the medical exemption to apply where

the employee "provides a written statement from a licensed

physician, nurse practitioner or physician assistant that, in the

physician's, nurse practitioner's or physician assistant's

professional judgment, immunization against one or more diseases

may be medically inadvisable." Id. § 8. The change took effect

September 1, 2021. Id. § 12. Second, the legislature eliminated

the religious and philosophical exemptions, with the change taking

effect April 19, 2020. See id. § 9. These modifications were the

subject of a statewide veto referendum in March 2020; over 72% of

voters voted to retain the changes.4 In April 2021, the Department

3 Maine law also allowed -- and still allows -- an
exemption for an individual who "declines [a] hepatitis B vaccine,
as provided for by the relevant [federal] law." Me. Rev. Stat.
Ann. tit. 22, § 802(4-B)(C). No party argues that this exemption
is relevant to this case, so we do not discuss it further.
4 See Tabulations for Elections Held in 2020, Dep't of the

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amended its healthcare-worker vaccination rules, which had

previously listed the available exemptions, to cross-reference the

exemptions allowed by statute. See 10-144-264 Me. Code R. § 3

(2021) (as amended Apr. 2021; amended Nov. 2021).

In June 2021, the legislature amended the statute

governing enforcement of the healthcare-worker vaccination

requirements to augment the potential penalties for violations.

See 2021 Me. Laws ch. 349, §§ 8-9 (codified at Me. Rev. Stat. Ann.

tit. 22, § 804(2)-(3)). The amended statute provides:

Any person who neglects, violates or
refuses to obey the [vaccination] rules or who
willfully obstructs or hinders the execution
of the rules may be ordered by the
[D]epartment . . . to cease and desist. . . .
In the case of any person who refuses to obey
a cease and desist order issued to enforce the
[vaccination] rules . . . , the [D]epartment
may impose a fine, which may not be less than
$250 or greater than $1,000 for each
violation. Each day that the violation
remains uncorrected may be counted as a
separate offense. . . .

A licensing agency under the [D]epartment
may immediately suspend a license . . . for a
violation under this section.

Me. Rev. Stat. Ann. tit. 22, § 804(2)-(3).

In August 2021, the Department conducted an emergency

rulemaking that added COVID-19 to the list of diseases against

which non-remote healthcare workers at licensed facilities,

Sec'y of State, https://www.maine.gov/sos/cec/elec/results/
results20.html (last visited May 24, 2023).

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including the Providers, must be vaccinated. See 10-144-264 Me.

Code R. §§ 1(F)(7), 2(A)(7) (2021) (as amended Aug. 2021; amended

Nov. 2021). The Department made this change permanent in November

2021.5 See id. (as amended Nov. 2021). The Mandate is the product

of this rule and the related state statutes.

B.

Because this appeal follows a dismissal for failure to

state a claim, we draw the facts from the plaintiffs' complaint.

See, e.g., Douglas v. Hirshon, 63 F.4th 49, 52 (1st Cir. 2023).

The plaintiffs in this case are seven individuals

formerly employed by the Providers in positions covered by the

Mandate.6 The plaintiffs allege that they object to receiving any

of the available COVID-19 vaccines on religious grounds "because

of the connection between the . . . vaccines and the cell lines of

aborted fetuses . . . in the vaccines' origination, production,

development, testing, or other inputs," which conflicts with the

plaintiffs' belief "that all life is sacred, from the moment of

5 The permanent rule differs in some respects from the
emergency rule; for instance, it does not cover dental or emergency
medical services providers, which the emergency rule had reached.
Compare 10-144-264 Me. Code R. § 1, with id. (2021) (as amended
Aug. 2021; amended Nov. 2021). No party argues that these
differences are relevant to this appeal.
6 Three of the plaintiffs formerly worked for Northern
Light Eastern Maine Medical Center, two worked for Genesis
HealthCare, and one worked for each of MaineGeneral Health and
MaineHealth.

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conception to natural death, and that abortion is a grave sin

against God and the murder of an innocent life."

Each plaintiff requested a religious "exemption and

accommodation" from his or her employer excusing him or her from

vaccination. The plaintiffs "offered, and [were] ready, willing,

and able to comply with . . . [other] health and safety

requirements to facilitate their religious exemption," such as by

"wear[ing] facial coverings, submit[ting] to reasonable testing

and reporting requirements, [and] monitor[ing] symptoms."

The Providers denied each request, explaining in their

responses that the Mandate did not permit religious exemptions.

After the plaintiffs refused to accept vaccination, they were

terminated from their employment.

C.

The original complaint in this action was filed on August

25, 2021, in the U.S. District Court for the District of Maine

against Governor Janet Mills, Department Commissioner Jeanne

Lambrew, and then-Maine Center for Disease Control and Prevention

("Maine CDC") Director Nirav Shah7 (the officials we refer to

collectively as the "State") and the Providers.8 The complaint,

7 Shah left office while this appeal was pending; Nancy
Beardsley has been substituted as a defendant-appellee. See Fed.
R. App. P. 43(c)(2).
8 The complaint originally named as a defendant the
Northern Light Health Foundation. Northern Light Eastern Maine
Medical Center was substituted as a defendant in January 2022,

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filed using pseudonyms for the plaintiffs, listed as plaintiffs

six "Jane Does" and three "John Does" who allegedly worked in

healthcare settings and objected to the Mandate on religious

grounds.9 Seven of the plaintiffs alleged that they were employees

or former employees of the Providers, one alleged that he was an

employer who objected to requiring his employees to comply with

the Mandate, and one alleged that she was employed by this employer

plaintiff.

The complaint included five counts. Against the State,

it challenged the Mandate under the First Amendment's Free Exercise

Clause and the Fourteenth Amendment's Equal Protection Clause.

Against the Providers, it raised Title VII claims for failure to

accommodate the plaintiffs' religious beliefs. And it alleged

that all defendants had violated the Supremacy Clause by

purportedly claiming that the Mandate superseded Title VII's

requirements, and had conspired to violate the plaintiffs' civil

rights in violation of 42 U.S.C. § 1985. The plaintiffs sought

declaratory and injunctive relief, as well as damages.

The same day the complaint was filed, the plaintiffs

moved for a temporary restraining order and preliminary injunction

prior to the filing of the operative amended complaint.
9 The complaint also listed as plaintiffs two thousand
"Jack Does" and "Joan Does" who allegedly had "been told not to"
seek religious exemptions from the Mandate or had sought such
exemptions and been denied them.

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barring the State from enforcing the Mandate against the employer

plaintiff and requiring the Providers to grant the employee

plaintiffs religious exemptions from COVID-19 vaccination. The

district court denied the motion. See Does 1-6 v. Mills, 566 F.

Supp. 3d 34, 39 (D. Me. 2021). This court affirmed, concluding

that the plaintiffs had not shown a likelihood of success on the

merits, that they would likely suffer irreparable harm absent

preliminary relief, or that the balance of the equities or the

public interest favored an injunction.10 See Does 1-6 v. Mills,

16 F.4th 20, 29-37 (1st Cir. 2021), cert. denied sub nom. Does 1-

3 v. Mills, 142 S. Ct. 1112 (2022). The Supreme Court denied the

plaintiffs' application for injunctive relief, see Does 1-3 v.

Mills, 142 S. Ct. 17, 17 (2021) (mem.), and their petition for

certiorari, see Does 1-3, 142 S. Ct. at 1112.

10 This court's decision on the plaintiffs' preliminary
injunction appeal does not control the outcome in this appeal
because the different procedural postures implicate different
burdens, standards of review, and factual records. That decision
evaluated, based on evidence submitted by all parties, whether the
district court had abused its discretion in denying the preliminary
injunction motion, and whether the plaintiffs had met their burden
of showing, among other things, both a likelihood of success on
the merits and irreparable harm. See Does 1-6 v. Mills, 16 F.4th
20, 29-30 (1st Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills,
142 S. Ct. 1112 (2022). In contrast, we review a dismissal under
Federal Rule of Civil Procedure 12(b)(6) de novo based on a record
limited to the complaint's well-pleaded allegations, which need
only make out plausible claims with all reasonable inferences drawn
in the plaintiffs' favor. See, e.g., Frese v. Formella, 53 F.4th
1, 5-6 (1st Cir. 2022). The defendants properly do not contend
that the result in Mills is binding in this appeal.

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 After remand to the district court, two Maine newspapers

intervened in the case to challenge the plaintiffs' use of

pseudonyms. The district court granted the newspapers' motion to

unseal the plaintiffs' identities and ordered the plaintiffs to

file an amended complaint identifying themselves by name, see Does

1-6 v. Mills, No. 21-cv-00242, 2022 WL 1747848, at *7 (D. Me. May

31, 2022), and this court denied a stay of the order pending

appeal, see Does 1-3 v. Mills, 39 F.4th 20, 22 (1st Cir. 2022).

Following this court's decision, the plaintiffs voluntarily

dismissed their appeal.

The plaintiffs filed the operative first amended

complaint (the "complaint") in July 2022. This amended pleading

removes some of the original plaintiffs (leaving only the seven

plaintiffs who allege they were employed by the Providers),

identifies the remaining plaintiffs by name, and updates some

factual allegations to reflect developments since the original

complaint's filing (such as the plaintiffs' termination from their

employment with the Providers), but includes the same claims as

the original complaint.

The defendants moved to dismiss. The State argued that

some of the claims must be dismissed for lack of jurisdiction under

Federal Rule of Civil Procedure ("Rule") 12(b)(1), asserting that

the plaintiffs lack standing to sue Governor Mills, who does not

play a role in enforcing the Mandate, and that the Eleventh

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Amendment bars the claims for money damages against the State.

The State did not make similar jurisdictional arguments with

respect to the non-damages claims for relief against the other

Maine officials. The defendants also argued that the plaintiffs'

allegations with respect to the other counts fail to state claims

under Rule 12(b)(6). The plaintiffs opposed the motions, though

they did not respond to the State's arguments limited to Rule

12(b)(1).

The district court granted the defendants' motions and

dismissed the complaint. See Lowe, 2022 WL 3542187, at *1. It

first dismissed the claims against Governor Mills and the damages

claims against the State because the plaintiffs had failed to

respond to the State's Rule 12(b)(1) arguments. See id. at *6.

Turning to the Rule 12(b)(6) motions, the court concluded that the

Mandate is a religiously neutral law of general applicability that

is rationally related to Maine's legitimate public health

interests, and so does not violate the Free Exercise or Equal

Protection Clauses. See id. at *10-15. And it reasoned that the

plaintiffs' factual allegations establish that the Providers could

not have offered the plaintiffs their requested accommodation

without violating state law and risking onerous penalties,

creating an undue hardship that precludes liability under Title

VII. See id. at *6-10. Finally, it concluded that the Supremacy

Clause does not provide a distinct cause of action and that the

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complaint's allegations with respect to the conspiracy count were

too vague and conclusory to support a plausible claim, and so

dismissed the Supremacy Clause and conspiracy claims. See id. at

*15.

This timely appeal followed.

II.

We review a district court's dismissal of a complaint

under Rule 12(b)(6) de novo. E.g., Douglas, 63 F.4th at 54-55.

To avoid dismissal, "[t]he complaint 'must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.'" Id. at 55 (internal quotation marks

omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"We take the complaint's well-pleaded facts as true, and we draw

all reasonable inferences in [the plaintiffs'] favor." Frese v.

Formella, 53 F.4th 1, 5 (1st Cir. 2022) (quoting Barchock v. CVS

Health Corp., 886 F.3d 43, 48 (1st Cir. 2018)). At this stage, we

"ordinarily may only consider facts alleged in the complaint and

exhibits attached thereto," Freeman v. Town of Hudson, 714 F.3d

29, 35 (1st Cir. 2013), although we may also consider materials

"fairly incorporated" in the complaint or subject to judicial

notice, Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir.

2004).

The plaintiffs' briefing on appeal does not address the

dismissal of the claims against Governor Mills, the damages claims

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against the State, or the Supremacy Clause and § 1985 conspiracy

claims. The plaintiffs have thus waived any arguments on those

points, and we affirm those aspects of the district court's

decision. See, e.g., Douglas, 63 F.4th at 54 n.6. That leaves

the free exercise and equal protection claims against the State

and the Title VII claims against the Providers at issue.

A.

1.

We begin with the free exercise claim. "The First

Amendment's Free Exercise Clause, as incorporated against the

states by the Fourteenth Amendment, protects religious liberty

against government interference." Mills, 16 F.4th at 29. A key

issue with respect to this claim is the appropriate standard of

scrutiny. A law that incidentally burdens religion is subject

only to rational basis review if it is religiously neutral and

generally applicable. E.g., id. A law that is not neutral or

generally applicable is subject to strict scrutiny. E.g., id. A

law is not generally applicable if it "treat[s] any comparable

secular activity more favorably than religious exercise."

Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam); see

also Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021)

("A law . . . lacks general applicability if it prohibits religious

conduct while permitting secular conduct that undermines the

government's asserted interests in a similar way."). Applying the

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Rule 12(b)(6) standard and drawing all reasonable inferences in

the plaintiffs' favor, we conclude that it is plausible, in the

absence of any factual development, that the Mandate falls in this

category, based on the complaint's allegations that the Mandate

allows some number of unvaccinated individuals to continue working

in healthcare facilities based on medical exemptions while

refusing to allow individuals to continue working while

unvaccinated for religious reasons.

The Supreme Court has explained that "whether two

activities are comparable for purposes of the Free Exercise Clause

must be judged against the asserted government interest that

justifies the regulation at issue," and that "[c]omparability is

concerned with the risks various activities pose." Tandon, 141 S.

Ct. at 1296; see also We the Patriots USA, Inc. v. Hochul, 17 F.4th

266, 285-88 (2d Cir. 2021) (conducting comparability analysis in

context of New York vaccine mandate for healthcare workers).

Tandon, for example, held that a group of plaintiffs was likely to

succeed in a free exercise challenge to a California law that, in

response to the COVID-19 pandemic, sought to reduce the virus's

spread by limiting religious gatherings in homes to no more than

three households, but "permitt[ed] hair salons, retail stores,

personal care services, movie theaters, private suites at sporting

events and concerts, and indoor restaurants to bring together more

than three households at a time." 141 S. Ct. at 1297; see id. at

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1298 (Kagan, J., dissenting). The Court determined that these

secular activities were comparable to the prohibited religious

gatherings because the record did not show that they "pose[d] a

lesser risk of transmission than [the plaintiffs'] proposed

religious exercise at home." Id. at 1297 (majority opinion).

As its principal interest in permitting medical but not

religious exemptions to the Mandate, the State cites a goal of

"revers[ing] the trajectory of falling vaccination rates in order

to prevent communicable, preventable diseases from spreading

in . . . healthcare facilities . . . so that all persons medically

unable to be vaccinated [can] be protected." The State also cites

a more general interest in "protecting the lives and health of

Maine people." (Quoting Lowe, 2022 WL 3542187, at *14.) Drawing

all reasonable inferences in the plaintiffs' favor, it is plausible

based on the plaintiffs' allegations that the medical exemption

undermines these interests in a similar way to a hypothetical

religious exemption. The availability of a medical exemption,

like a religious exemption, could reduce vaccination rates among

healthcare workers and increase the risk of disease spread in

healthcare facilities, compared to a counterfactual in which the

Mandate contains no exceptions, all workers must be vaccinated,

and neither religious objectors nor the medically ineligible can

continue working in healthcare facilities. Cf. Tandon, 141 S. Ct.

at 1297 (comparing risk of disease transmission).

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 The State argues that comparing the risks created by the

two exemptions in this way is inappropriate because "Maine's

asserted interest in providing only a medical exemption . . . is

not based on comparative assessments of risk," but instead on

keeping vaccination rates high to protect Mainers, and especially

Mainers medically unable to be vaccinated. But the State has not

asserted an independent interest in maximizing vaccination rates

apart from the public health benefits of doing so, and the Supreme

Court has instructed us to assess comparability in the public

health context based on "the risks various activities pose." Id.

at 1296. The State's argument that it did not independently

conduct this type of analysis is, if anything, a reason to be

skeptical that dismissal is appropriate absent further factual

development.

The State also references in passing an interest in

"safeguarding Maine's healthcare capacity." (Quoting Lowe, 2022

WL 3542187, at *14.) While excusing some workers from vaccination

for medical reasons may protect Maine's "healthcare capacity" by

making more workers available, authorizing a religious exemption

plausibly could have a similar effect. We thus cannot conclude,

at least without more facts, that this interest renders the two

exemptions incomparable.

The State asserts that the medical exemption is

"fundamentally different . . . [from] a religious exemption because

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a medical exemption aligns with the State's interest in protecting

public health and, more specifically, medically vulnerable

individuals from illness and infectious diseases, while non-

medical exemptions . . . do not." (Quoting Lowe, 2022 WL 3542187,

at *12.) But, drawing all reasonable inferences in the plaintiffs'

favor, it is plausible that a version of the Mandate that did not

include a medical exemption could do an even better job of serving

the State's asserted public health goals, and that the inclusion

of the medical exemption undermines the State's interests in the

same way that a religious exemption would by introducing

unvaccinated individuals into healthcare facilities.

Of course, it is entirely possible that additional facts

might show that the two types of exemption are not comparable.

For example (and not by way of limitation), it may be that medical

exemptions are likely to be rarer, more time limited, or more

geographically diffuse than religious exemptions, such that the

two exemptions would not have comparable public health effects.

Cf. We the Patriots, 17 F.4th at 286 (discussing evidence

suggesting that medical and religious exemptions to a New York

vaccine mandate were "not comparable in terms of the 'risk' that

they pose[d]" (quoting Tandon, 141 S. Ct. at 1296)). We reject

the plaintiffs' apparent view that the only relevant comparison is

between the risks posed by any one individual who is unvaccinated

for religious reasons and one who is unvaccinated for medical

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reasons. Instead, we agree with the Second Circuit that Supreme

Court precedent "suggests the appropriateness of considering

aggregate data about transmission risks." Id. at 287; see id. at

286-87 ("We doubt that, as an epidemiological matter, the number

of people seeking exemptions is somehow excluded from the factors

that the State must take into account in assessing the relative

risks to the health of healthcare workers and the efficacy of its

vaccination strategy . . . ."). But, absent factual development,

dismissal is unwarranted.

The State does advance a comparability argument based on

facts outside the complaint that it argues we may nonetheless

properly consider. The State cites a Federal Centers for Medicare

and Medicaid Services ("CMS") interim final rule governing staff

vaccination requirements in certain healthcare facilities,

including hospitals and long-term care facilities, that receive

Medicare and Medicaid funds, which the State represents "covers

many of the same healthcare entities as Maine's [Mandate]." See

Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff

Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (codified at 42

C.F.R. pts. 416, 418, 441, 460, 482-86, 491, 494). The State

observes that CMS's explanation of the regulation states that the

rule preempts state laws "providing for exemptions to the extent

such law[s] provide[] broader grounds for exemptions than provided

for by Federal law," id. at 61,613, and argues that the medical

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exemption permitted under the CMS rule, which requires a worker

seeking an exemption to provide signed documentation from a

"licensed practitioner" that the worker has "recognized clinical

contraindications to COVID-19 vaccines," e.g., id. at 61,619-20,

is more restrictive than the medical exemption under Maine law,

see Me. Rev. Stat. Ann. tit. 22, § 802(4-B)(A), such that, in

practice, only the narrower medical exemption under the CMS rule

will be available in at least some of the facilities covered by

the Mandate.

The State then argues that this narrower CMS medical

exemption would permit only a small number of healthcare workers

to obtain medical exemptions from the Mandate. Citing a U.S.

Centers for Disease Control and Prevention ("CDC") fact sheet, the

State represents that "CDC[-]recognized contraindications to

vaccination are limited to [(1)] known allergies [to

vaccine components], [and (2)] severe allergic reactions

(anaphylaxis) . . . and [(3)] cardiac conditions (TTS) occurring

after the administration of a prior dose of a COVID-19 vaccine."11

Citing a CDC webpage, the State argues that at least two of these

11 The original source cited by the State appears no longer
to be available online. For an archived version, see U.S. CDC,
Summary Document for Interim Clinical Considerations for Use of
COVID-19 Vaccines Currently Authorized or Approved in the United
States (Dec. 6, 2022), https://web.archive.org/web/
20221221222603/https://www.cdc.gov/vaccines/covid-19/downloads/
summary-interim-clinical-considerations.pdf.

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three contraindications are vanishingly rare -- with approximately

five instances of anaphylaxis and four cases of TTS occurring per

million vaccine doses administered -- such that "the approximately

11 or 12 persons that would suffer an adverse reaction to a COVID-

19 vaccination based on Maine's entire population (not just persons

subject to the [Mandate]) is about the same [as the] number of

[plaintiffs] in this appeal."12 On that basis, the State argues

that "[t]he risks between medical and religious exemptions

are . . . not comparable."

Comparisons of this sort may well be relevant to the

comparability inquiry. See We the Patriots, 17 F.4th at 286. But

these limited data are insufficient to resolve the comparability

inquiry at the motion-to-dismiss stage -- even assuming we may

properly consider them. Cf. Freeman, 714 F.3d at 35-37 (discussing

limits on consideration of materials outside complaint in

evaluating motion to dismiss). Even accepting, for the sake of

argument, the State's premise that the narrower medical exemption

under the CMS rule is relevant to the comparability analysis in

this case, its interpretation of the CMS rule and the CDC's

clinical recommendations, and its calculations about the

prevalence of anaphylaxis and TTS, there are several significant

12 For the State's source, see Selected Adverse Events
Reported After COVID-19 Vaccination, U.S. CDC (Mar. 7, 2023),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/
adverse-events.html.

- 22 -
gaps in the State's argument. First, the State does not explain

how many facilities and workers covered by the Mandate actually

fall within the CMS rule's coverage, simply stating that "many"

do.13 Second, it does not address how many individuals might

qualify for medical exemptions under the CMS rule based on known

allergies to COVID-19 vaccines; it instead discusses the

prevalence of only two of the three contraindications it describes.

Third, the State's argument does not show how many individuals

would likely seek religious exemptions from the Mandate, were they

available, instead assuming that the number would be significantly

greater than the number of plaintiffs in this case. Given those

gaps, and the requirement at this stage to draw all reasonable

inferences in the plaintiffs' favor, it remains plausible that the

Mandate's medical exemption creates comparable risks to those that

would be created by a religious exemption, warranting strict

scrutiny.14

13The plaintiffs' counsel stated at oral argument that the
plaintiffs in this case worked at facilities covered by the CMS
rule. But the State has not developed any argument that we should
look only at facilities covered both by the CMS rule and the
Mandate for purposes of assessing the Mandate's constitutionality.
We express no view on the merits of such an argument, were the
State to advance it, but, absent such an argument, we decline to
so constrain the inquiry.
14Our conclusion that it is plausible that the Mandate is
subject to strict scrutiny on this basis makes it unnecessary at
this stage to address the other arguments for strict scrutiny
advanced by the plaintiffs, such as the assertion that the Mandate
is not generally applicable because it creates "a mechanism for
individualized exemptions." Fulton, 141 S. Ct. at 1877 (quoting

- 23 -
 Because it is plausible, based on the complaint and

without the benefit of factual development, that the Mandate is

subject to strict scrutiny, dismissal would be appropriate only if

the materials we may consider on a motion to dismiss establish

that the Mandate survives that standard of review even when

applying the Rule 12(b)(6) plausibility standard. Cf. Zenon v.

Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (discussing circumstances

in which affirmative defense, for which defendant bears burden of

proof, may be adjudicated on motion to dismiss). Strict scrutiny

requires the State to show that the Mandate is narrowly tailored

to advance a compelling government interest. See, e.g., Fulton,

141 S. Ct. at 1881. "Put another way, so long as the government

can achieve its interests in a manner that does not burden

religion, it must do so." Id.

The State does briefly contend that the Mandate survives

strict scrutiny, but its argument does not justify dismissal on

the pleadings. It argues that a statement issued by the Maine CDC

in November 2021, when the agency made the regulation requiring

COVID-19 vaccination for healthcare workers permanent, establishes

that the Mandate is the least restrictive means to achieve the

State's public health goals. The statement discusses the agency's

reasoning concerning why alternative measures, such as mandatory

Emp. Div. v. Smith, 494 U.S. 872, 884 (1990)).

- 24 -
masking, were insufficient to prevent the spread of COVID-19. But

the cited discussion is insufficient, standing alone, to satisfy

the State's burden under strict scrutiny. For example, it does

not address the likely effects of including a religious exemption

in the Mandate or give reasons why doing so would prevent the state

from achieving its public health goals.15 Cf. id. at 1881-82

(holding that a government defendant had not shown that a religious

exemption to a challenged policy would undermine the interests the

policy aimed to advance so as to satisfy strict scrutiny). As a

result, even assuming we may properly consider the statement at

the motion-to-dismiss stage, cf. Freeman, 714 F.3d at 35-37, it

does not establish that the Mandate satisfies strict scrutiny and,

thus, that dismissal is appropriate.

We emphasize the narrowness of our holding. We do not

determine what standard of scrutiny should ultimately apply to the

free exercise claim. Nor do we decide whether the Mandate survives

the applicable level of scrutiny. Those questions are not before

us. We hold only that, applying the plausibility standard

applicable to Rule 12(b)(6) motions and drawing all reasonable

inferences from the complaint's factual allegations in the

15 A portion of the agency's statement not cited by the
State does reference the possibility of religious exemptions to
the Mandate, but only in observing that the state legislature had
eliminated the option for such exemptions by statute in 2019. It
does not independently analyze the likely effects of such
exemptions.

- 25 -
plaintiffs' favor, the complaint states a claim under the Free

Exercise Clause.

2.

We next consider the plaintiffs' equal protection claim,

which alleges that the Mandate burdens their free exercise rights

and discriminates on the basis of religion. The district court

reasoned that, because it had concluded that the free exercise

claim warranted only rational basis review, an equal protection

claim resting on the assertion that the Mandate burdens the

plaintiffs' free exercise rights must also receive rational basis

review. Lowe, 2022 WL 3542187, at *14-15 (citing Wirzburger v.

Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005)). The court

determined that the Mandate survives rational basis review under

the Equal Protection Clause for the same reasons as in the free

exercise context. See id. at *15. On appeal, the State endorses

this reasoning. It does not develop any argument that, if we

reverse the dismissal of the free exercise claim, we can

nonetheless affirm the dismissal of the equal protection claim.

As a result, because we reverse the dismissal of the free exercise

claim, we also reverse the dismissal of the equal protection claim.

B.

We turn to the plaintiffs' Title VII claims against their

former employers, the Providers. As relevant here, Title VII

declares it an "unlawful employment practice for an

- 26 -
employer . . . to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's . . . religion." 42 U.S.C.

§ 2000e-2(a). The statute defines "religion" to "include[] all

aspects of religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable to reasonably

accommodate to an employee's . . . religious observance or practice

without undue hardship on the conduct of the employer's business."

Id. § 2000e(j).

This court "appl[ies] a two-part framework in analyzing

religious discrimination claims under Title VII."

Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 12

(1st Cir. 2012). "First, [a] plaintiff must make [her] prima facie

case that a bona fide religious practice conflicts with an

employment requirement and was the reason for the adverse

employment action." Id. (quoting Cloutier v. Costco Wholesale

Corp., 390 F.3d 126, 133 (1st Cir. 2004)). "[T]he burden then

shifts to the employer to show that it offered a reasonable

accommodation or, if it did not offer an accommodation, that doing

so would have resulted in undue hardship." Cloutier, 390 F.3d at

133. The Providers do not dispute that the plaintiffs have

adequately alleged a prima facie case sufficient to survive a Rule

12(b)(6) motion, and do not claim that they offered any reasonable

- 27 -
accommodation of the plaintiffs' religious practices. As to the

Providers, this appeal thus turns on their undue hardship defense.

Although undue hardship is an affirmative defense, see

id., dismissal on a Rule 12(b)(6) motion is nonetheless appropriate

if "the facts establishing the defense [are] clear on the face of

the plaintiff[s'] pleadings" and "there is 'no doubt' that the

plaintiff[s'] claim[s] [are] barred," Zenon, 924 F.3d at 616 (first

alteration in original) (internal quotation marks omitted) (first

quoting Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 114 (1st

Cir. 2009); and then quoting Blackstone Realty LLC v. FDIC, 244

F.3d 193, 197 (1st Cir. 2001)). The complaint and the plaintiffs'

briefing make clear that the plaintiffs would accept only one

accommodation: a religious exemption allowing them to continue in

their roles without receiving a vaccine while observing other

precautions, such as masking and testing.16 We thus need only

determine whether that accommodation would have constituted an

undue hardship.17 See Cloutier, 390 F.3d at 134-35. We agree with

16 In their reply brief, the plaintiffs attempt to draw a
distinction between their requested exemption from the Mandate and
what they separately describe as their proposed accommodation of
continuing in their previous roles while complying with safeguards
such as masking and testing. Because this issue was not raised in
their opening brief, we deem it waived. See, e.g., FinSight I
LP v. Seaver, 50 F.4th 226, 235 (1st Cir. 2022).
17 At points in their briefing, the plaintiffs take issue
with the alleged failure by the Providers to "provide at least a
process for seeking an accommodation." As this court has explained
in the context of the Americans with Disabilities Act, "liability
for failure to engage in an interactive process depends on a

- 28 -
the district court that it would, and reject the plaintiffs'

arguments to the contrary.

1.

Maine law makes clear that, by providing the plaintiffs

their requested accommodation as described in the complaint, the

Providers would have risked onerous penalties, including license

suspension. The Mandate requires the Providers to "require for

all employees who do not exclusively work remotely [and who are

not medically exempted] a [c]ertificate of [i]mmunization . . .

against . . . COVID-19." 10-144-264 Me. Code R. § 2(A); see Me.

Rev. Stat. Ann. tit. 22, § 802(4-B) (allowing medical exemptions);

10-144-264 Me. Code R. § 3 (permitting medical exemptions by cross-

referencing section 802). Granting the plaintiffs their requested

religious exemption would thus have placed the Providers in

violation of the Mandate. The penalties for such a violation are

burdensome. By statute, the Department's licensing authorities

"may immediately suspend a [healthcare facility's] license . . .

for a violation [of the Mandate]," and regulators may also impose

substantial fines. Me. Rev. Stat. Ann. tit. 22, § 804(3); see id.

§ 804(2) (authorizing the Department to issue cease-and-desist

finding that the parties could have discovered and implemented a
reasonable accommodation through good faith efforts." Trahan v.
Wayfair Me., LLC, 957 F.3d 54, 67 (1st Cir. 2020); see also Mills,
16 F.4th at 36 (applying this reasoning to Title VII claim).
Nothing in the complaint suggests -- and the plaintiffs do not
argue -- that such a resolution was possible here.

- 29 -
orders to violators, with noncompliance punishable by fines of up

to $1,000 per violation per day).

The complaint itself acknowledges the threat to the

Providers' licenses. Quoting a press release from the Governor's

office announcing the Mandate, it states: "[T]he [healthcare]

organizations to which th[e] [Mandate] applies must ensure that

each employee is vaccinated, with this requirement being enforced

as a condition of the facilities' licensure."18 The complaint then

declares (in bolded text): "Thus, the Governor has threatened to

revoke the licenses of all health care employers who fail to

mandate that all employees receive the COVID-19 vaccine." The

only reasonable inference from this allegation and from the

relevant Maine law, both of which we may properly consider in

reviewing the dismissal of the Title VII claims, see Eves v.

LePage, 927 F.3d 575, 578 n.2 (1st Cir. 2019) (en banc), is that

granting the requested accommodation would have exposed the

Providers to a substantial risk of license suspension, as well as

monetary penalties.

The plaintiffs' counsel essentially agreed with this

conclusion at oral argument. Counsel observed that the State had

18 See Press Release, Janet T. Mills, Governor, State of
Maine, Mills Administration Requires Health Care Workers to Be
Fully Vaccinated Against COVID-19 by October 1 (Aug. 12, 2021),
https://www.maine.gov/governor/mills/news/mills-administration-
requires-health-care-workers-be-fully-vaccinated-against-covid-
19-october.

- 30 -
"made clear that . . . exemptions could be granted only for medical

reasons," that granting the plaintiffs' desired accommodation

would require violating the Mandate, and that "noncompliant

employers would face fines and loss of licensure." He reiterated:

Maine . . . [went] to the extreme to say [that]
no one can grant a religious exemption, and
that if an employer grants a religious-based
exemption, they could lose their license and
they will be fined. That is an extraordinary
step by the State of Maine against its
employers . . . . It puts the employers to a
great extent in this damned-if-you-do, damned-
if-you-don't . . . situation.

And he acknowledged that "obviously, [the plaintiffs'] real

interest is with the State."

The risk of license suspension for violating the Mandate

would have constituted an "undue hardship on the conduct of the

[Providers'] business" under any plausible interpretation of that

phrase. 42 U.S.C. § 2000e(j). Title VII does not define "undue

hardship," see id. § 2000e, but current law holds that "[a]n

accommodation constitutes an 'undue hardship' if it would impose

more than a de minimis cost on the employer," Cloutier, 390 F.3d

at 134 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S.

63, 84 (1977)). Cloutier, for example, held that it would have

caused undue hardship to require a retailer to permit a cashier to

wear facial piercings while working "because [doing so] would

adversely affect the employer's public image," as the retailer

"ha[d] made a determination that facial piercings, aside from

- 31 -
earrings, detract from the 'neat, clean and professional image'

that it aim[ed] to cultivate," and "[s]uch a business determination

[was] within [the retailer's] discretion." Id. at 136; see id. at

135-36. The hardship in this case is far more significant: rather

than having some intangible effect on the Providers' public images

that could -- in their own discretionary judgment -- eventually

harm their revenues, license suspension would concretely disrupt

the Providers' "conduct of [their] business." 42 U.S.C.

§ 2000e(j).

We are aware that the Supreme Court has heard argument

in a case in which the petitioner asks it to reconsider the more-

than-de-minimis-cost interpretation of "undue hardship," see

Groff v. DeJoy, No. 22-174 (U.S. argued Apr. 18, 2023), but our

holding is not dependent on that formulation of the legal standard.

Rather, we hold that the plaintiffs' requested accommodation would

have constituted an undue hardship under any plausible

interpretation of the statutory text. For example, the Americans

with Disabilities Act ("ADA") also includes an "undue hardship"

defense: the Act forbids "discriminat[ion] [in employment] against

a qualified individual on the basis of disability," 42 U.S.C

§ 12112(a), including by "not making reasonable accommodations to

the known physical or mental limitations of an otherwise qualified

individual with a disability . . . unless [the employer] can

demonstrate that the accommodation would impose an undue hardship

- 32 -
on the operation of [its] business," id. § 12112(b)(5)(A). The

statute defines "undue hardship" to "mean[] an action requiring

significant difficulty or expense, when considered in light of [a

statutorily defined list of] factors." Id. § 12111(10)(A); see

also Small v. Memphis Light, Gas & Water, 952 F.3d 821, 826-27

(6th Cir. 2020) (Thapar, J., concurring) (arguing for an

interpretation of "undue hardship" under Title VII that requires

"significant costs on the [employer]"); Brief for Petitioner at

17-28, Groff, No. 22-174 (U.S. Feb. 21, 2023) (similar). The risk

of license suspension facing the Providers would readily meet this

standard, too; indeed, it is difficult to imagine a penalty that

would cause a healthcare provider more significant difficulty

"[i]n the conduct of [its] business," 42 U.S.C. § 2000e(j), than

license suspension. Cf. EEOC v. Amego, Inc., 110 F.3d 135, 148 &

n.15 (1st Cir. 1997) (concluding that accommodation would have

constituted undue hardship under ADA where it would have required

nonprofit to hire additional staff it could not realistically

afford).

Other circuits' caselaw addressing the interaction

between Title VII's undue hardship defense and state law supports

our conclusion. For example, the Third Circuit, in United States

v. Board of Education, 911 F.2d 882 (3d Cir. 1990), concluded that

an accommodation would have constituted an undue hardship for an

employer school board where it would have required the board's

- 33 -
administrators to violate a state criminal statute, thereby

"expos[ing] [the] administrators to a substantial risk of criminal

prosecution, fines, and expulsion from the profession."19 Id. at

891; see id. at 890-91. While violating the Mandate would not

carry a risk of criminal charges, it would create a substantial

risk of enforcement, fines, and license suspension. Indeed, the

threat to the Providers' business is, if anything, more direct in

this case than in Board of Education, where the court discussed a

risk of charges against the defendant's employees, see id. at 891;

here, the objects of enforcement actions would be the Providers

themselves, see Me. Rev. Stat. Ann. tit. 22, § 804(2)-(3).

The Ninth Circuit has similarly held that accommodations

that would force private employers to "risk liability for

violating" state law constitute undue hardships under Title VII.20

19 The Third Circuit declined to "address the situation in
which . . . the chances of enforcement are negligible and
accommodation involves no realistic hardship," or "the situation
in which the defendant is a government entity with the
authority . . . to control whether or not enforcement actions will
be brought." 911 F.2d at 891. No such situation obtains here: as
discussed above, neither state law nor the complaint provide any
reason to doubt that enforcement was likely.
20 The Ninth Circuit recently declined to extend this rule
to a state agency acting as an employer, reasoning that the agency
was "part of the very state government that [was] responsible for
creating and enforcing" the state law at issue, such that there
was a lesser likelihood that the state law would be enforced
against the agency and a risk that states could pass laws designed
to excuse their agencies from compliance with Title VII.
Bolden-Hardge v. Off. of the Cal. State Controller, 63 F.4th 1215,
1225 (9th Cir. 2023); see id. at 1225-27. The Providers are

- 34 -
Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir.

1984); see also Sutton v. Providence St. Joseph Med. Ctr., 192

F.3d 826, 830 (9th Cir. 1999) ("[C]ourts agree that an employer is

not liable under Title VII when accommodating an employee's

religious beliefs would require the employer to violate federal or

state law."); Tagore v. United States, 735 F.3d 324, 329-30 (5th

Cir. 2013) (citing Sutton with approval in a case involving a

proposed accommodation that would require an employer to violate

federal law).

Several circuits have also held that accommodations that

would require employers to violate other federal laws are not

required by Title VII -- sometimes on the theory that such a

violation precludes the plaintiff from making out a prima facie

case, and sometimes on the theory that such an accommodation would

constitute an undue hardship. See Truskey v. Vilsack, No. 21-

5821, 2022 WL 3572980, at *3 (6th Cir. Aug. 19, 2022) (unpublished

decision) (collecting cases from Fourth, Sixth, Eighth, Ninth,

Tenth, and Eleventh Circuits).

We need not and do not decide whether every accommodation

that would require an employer to violate state or federal law

would necessarily constitute an undue hardship under Title VII.

But these out-of-circuit decisions confirm that potential

private employers, so this reasoning does not apply here.

- 35 -
penalties for violating other laws can render a proposed

accommodation an undue hardship. And, for the reasons described

above, we hold that this case falls in that category.

2.

The plaintiffs' counterarguments fail. Importantly,

they do not develop any meaningful argument that the risk of

license suspension in this case is insufficiently burdensome as to

have constituted an undue hardship for the Providers. Indeed, as

discussed above, the plaintiffs' counsel at oral argument

acknowledged the difficulty faced by the Providers, characterizing

it as a "damned-if-you-do, damned-if-you-don't . . . situation."

The plaintiffs instead argue that factual issues make dismissal

under Rule 12(b)(6) inappropriate and that Title VII preempts the

Mandate and requires the Providers to grant the requested

accommodation. We find these contentions unpersuasive.

The plaintiffs assert generally that whether their

requested accommodation would constitute an undue hardship "is a

question of fact not suitable for determination on a motion to

dismiss." As discussed above, however, we conclude that the

complaint's allegations and the relevant Maine law permit no

reasonable inference but that granting the plaintiffs their

requested accommodation would have exposed the Providers to a

substantial risk of license suspension and other penalties,

creating an undue hardship. See Zenon, 924 F.3d at 616 (discussing

- 36 -
adjudication of affirmative defenses at Rule 12(b)(6) stage); see

also Iqbal, 556 U.S. at 678 (describing Rule 12(b)(6) plausibility

standard).

The plaintiffs offer two more specific purported factual

issues that, they argue, preclude dismissal, but these arguments

fare no better. First, they contend that they "plead[ed] and

offered available alternatives to compulsory vaccination," such as

masking and testing. This argument misunderstands the undue

hardship that the Providers cite, which is not the safety risk

from allowing the plaintiffs to work while unvaccinated, but

instead the penalties that the Providers would have faced for

violating the Mandate. Those penalties would have applied -- and

constituted an undue hardship -- regardless of the factual merits

of the plaintiffs' view that their proposed alternatives would be

adequate in terms of safety.

Second, the plaintiffs argue in their briefing, based on

a Department guidance document, that their requested accommodation

would not actually have violated the Mandate. The guidance

document at issue states that the Mandate "does not prohibit

employers from providing accommodations for employees' sincerely

held religious beliefs, observances, or practices that may

otherwise be required by Title VII," but that "implementation, if

such accommodations are provided by a [healthcare employer], must

- 37 -
comply with the [Mandate]."21 The plaintiffs assert that the first

piece of quoted language shows that the Providers could lawfully

have granted their requested accommodation. But this reading

ignores the second piece of quoted language; read as a whole, the

guidance document makes plain that employers could provide

religious accommodations other than exemptions (for instance, by

authorizing remote work, which would place the worker outside the

Mandate's scope) but could not offer religious exemptions to

workers covered by the Mandate (since doing so would not comply

with the Mandate). The plaintiffs have never alleged or argued

that they would have accepted any accommodations that would have

placed them outside the Mandate's scope. And certainly the

Providers could not have confidently relied on the guidance

document to conclude that offering religious exemptions would not

expose them to penalties for violating the Mandate, such as would

render the plaintiffs' requested accommodation not an undue

hardship. Indeed, the plaintiffs' counsel appeared to retreat

from this argument at oral argument, recognizing that "the Maine

CDC made clear that . . . exemptions could be granted only for

medical reasons," and that "if [the Providers] . . . even consider

21 Health Care Worker Vaccination FAQs, State of Me. COVID-
19 Response (Nov. 10, 2021), https://www.maine.gov/covid19/
vaccines/public-faq/health-care-worker-vaccination.

- 38 -
[religious exemptions], then they're violating the . . . Mandate."

The guidance document does not save the Title VII claim.

In their final counterargument, the plaintiffs assert

that Title VII preempts the Mandate, such that the Providers were

required to offer the requested accommodation notwithstanding

state law. The Supreme Court has explained that Title VII preempts

state laws "only if they actually conflict with federal law." Cal.

Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281 (1987); see

id. at 281-83 (discussing "[t]he narrow scope of pre-emption

available under [Title VII]"). The plaintiffs' argument fails

because there is no "actual[] conflict" in this case. As relevant

here, Title VII could preempt the Mandate only if it required the

Providers to grant the plaintiffs' requested accommodation. But

granting that accommodation would have exposed the Providers to

penalties for violating the Mandate, and thus constituted an undue

hardship not required by Title VII.

This conclusion follows from Title VII's text and

structure, which make clear that the undue hardship analysis

precedes any conclusion about preemption of state law. The undue

hardship defense is built into the statutory definition of

"religion," see 42 U.S.C. § 2000e(j), such that an employment

action cannot constitute discrimination on the basis of religion,

and an employer cannot be liable under Title VII for religious

discrimination, if the undue hardship defense applies, see, e.g.,

- 39 -
Bd. of Educ., 911 F.2d at 886. In other words, while the

plaintiffs' counsel at oral argument stated that the need to comply

with the Mandate, on the one hand, and with Title VII, on the

other, placed the Providers in a "damned-if-you-do, damned-if-you-

don't . . . situation," the undue hardship defense clearly applies

on the pleadings. Because the requested accommodation would have

imposed undue hardship, Title VII does not require it.

The plaintiffs rely on 42 U.S.C. § 2000e-7, which

provides:

Nothing in [Title VII] shall be deemed to
exempt or relieve any person from any
liability, duty, penalty, or punishment
provided by any present or future law of any
State . . . , other than any such law which
purports to require or permit the doing of any
act which would be an unlawful employment
practice under [Title VII].

They argue that this provision exempts the Providers from liability

for violating the Mandate, which, they assert, purports to require

the Providers to violate Title VII by denying them their preferred

accommodation.

The plaintiffs' position takes an extremely broad view

of Title VII's requirements for employers. Cf. We the Patriots,

17 F.4th at 291-92 (explaining that "Title VII does not require

covered entities to provide [whatever] accommodation . . .

[p]laintiffs prefer"). But we need not address the merits of this

interpretation because, in any event, the Providers do not have

- 40 -
enforcement authority with respect to the Mandate, and they have

no power to determine for the State that the Mandate is invalid

under Title VII. Violating the Mandate would thus have exposed

them to a risk of immediate license suspension -- an undue hardship

that Title VII did not require them to suffer.22

The applicability of the undue hardship defense

distinguishes this case from those the plaintiffs cite applying

§ 2000e-7 in the context of alleged racial discrimination -- where

Title VII offers no undue hardship defense. See, e.g., Guardians

Ass'n of the N.Y.C. Police Dep't, Inc. v. Civ. Serv. Comm'n, 630

F.2d 79, 104-05 (2d Cir. 1980) (explaining that an employer could

not justify an employment policy with a "disparate racial impact"

based on the "requirements of state law"). The plaintiffs cite no

case holding that Title VII preempted a state law in analogous

circumstances involving religion, and, as discussed above,

multiple circuits have held that potential penalties under state

22 The plaintiffs have never argued that there were any
steps the Providers could or should have taken to test the
Mandate's legal validity under Title VII or to determine whether
granting the plaintiffs their requested accommodation would result
in enforcement actions by the State, short of defying the Mandate
and risking penalties. We thus need not decide whether taking
such steps would have constituted an undue hardship. Cf., e.g.,
Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000) (holding
that it would have been an undue hardship to require an employer
to seek a waiver from an IRS requirement that employers provide
their employees' Social Security numbers to the agency).

- 41 -
law can establish an undue hardship defense. See Bd. of Educ.,

911 F.2d at 890-91; Bhatia, 734 F.2d at 1384.

We conclude that the Title VII claims were properly

dismissed.

III.

For the foregoing reasons, we affirm the dismissal of

the plaintiffs' claims under the Supremacy Clause, § 1985, and

Title VII. We also affirm the dismissal of the plaintiffs' claims

against Governor Mills and their damages claims against the State.

We reverse the dismissal of the remaining claims, and remand for

proceedings consistent with this opinion. All parties shall bear

their own costs.

- 42 -