The Advocate

Everyone Who Read Bergin in July Heard the Second Circuit Tell Religious Workers to Prove Their Boss Hated Their Faith. On September 15 the Court Added a Footnote. It Is Eighty Eight Words Long, and It Came After Washington Pushed Back.

On September 15 the Second Circuit amended Bergin after pushback from the federal government. Two footnotes: no religious animus required, but the denial must be because of your faith and not your late paperwork. We print the eighty eight words.

Strip the amendment to its principle and it is not complicated. A court that changes the law owes the people who live under it a clear statement of what changed, and when that statement turns out to be unclear, the honest thing is to go back and fix it in public. On September 15 the Second Circuit did that.

Define the terms. Bergin v. New York State Unified Court System is the case of Jessica Bergin, a court officer fired in April 2022 after the court system denied her religious exemption from its COVID vaccine rule and refused to read the supplemental form she sent in late. On July 15 a panel (Judges Raggi and Nathan, with Judge Furman sitting by designation) held that EEOC v. Abercrombie & Fitch Stores, decided in 2015, had abrogated forty years of Second Circuit precedent. The old test asked whether you held a sincere belief, told your employer, and were punished. The new test asks whether your employer's desire to avoid accommodating you was a motivating factor in what it did to you. Knowledge out, motive in. We wrote about it on September 1.

Then Washington pushed back. Law360 reported on September 15 that the panel had amended its precedential opinion "after the ruling drew pushback from the federal government." The amended opinion, dated the same day, carries two new footnotes and changes nothing else. Bergin still goes back to Judge Cogan in Brooklyn.

Read footnote two before anyone tells you what it means.

Here it is, all eighty eight words:

"In stating that Abercrombie abrogated the absence of a 'motive' requirement in our prior test, we do not suggest that a new, heightened discriminatory motive requirement exists in failure-to-accommodate cases. That is to say, an employee asserting a failure-to-accommodate claim need not show that an employer's denial of an accommodation was motivated by discriminatory animus against religion. But, consistent with Abercrombie, the employee does have to show that the denial was 'because' of the employee's religion as opposed to, say, the employee's failure to timely provide sufficient information."

Two sentences do the work, and they pull in opposite directions.

The first is the concession. Motive is not malice. A worker refused a Sabbath, a headscarf, a beard, or an exemption does not have to prove that the person who refused her despised her religion. She has to prove that avoiding her accommodation was part of why the employer acted. That is Abercrombie, the 2015 case of Samantha Elauf, the Muslim teenager Abercrombie declined to hire because a manager assumed her headscarf would need a dress code exception. Nobody there hated Islam. Somebody wanted to avoid the bother, and the Court said that is enough. The July opinion said the same thing in the language of "motive," and some readers heard "animus." The footnote closes that door.

The second sentence is the catch, and it will decide Bergin's own case. The employee must show the denial was because of her religion "as opposed to, say, the employee's failure to timely provide sufficient information." That example is not hypothetical. It is the court system's defence. The exemption committee, handling 1,200 requests, sent Bergin a supplemental form; she returned it mostly blank with a note about privacy; the committee denied her; she sent the completed form a week before the deadline; the committee said its decisions were final. If Judge Cogan finds the denial was because of the blank form, Bergin loses under the very footnote that reassures her.

Concede the fair point. Nine hundred and sixty of those requests needed multi-step review. Deadlines were logistics, not hostility, and the footnote protects that too.

The second footnote almost nobody has noticed. The court adds that Bergin's firing "constitutes a cognizable adverse employment action," then declines to decide "whether the failure to accommodate itself constitutes an adverse employment action," citing Muldrow v. City of St. Louis, the 2024 case that lowered the harm a worker must show. That is left open on purpose, and it matters most to the nurse with no Sabbath who is not fired.

Here is the balanced sentence: a footnote that says you need not prove hatred is also a footnote that says you must prove something, and the something is the reason your employer gave.

The pluralist move is the same as on September 1. The rule that shields the Catholic court officer with a pastor's letter shields the Muslim applicant with a headscarf, the Sikh with a beard, the Adventist with a Saturday, or it shields none of them. The employer who says "we do not object to your faith, we just did not want the bother" has said the thing that loses. The employer who says "you never answered the form" has said the thing that wins, unless the form was a pretext, and pretext is proved with paper.

Which is what you can do. Answer every question they send, on time, in writing, even the intrusive ones, and keep copies. If they say no, ask for the reason in writing. If the reason is the paperwork, fix it, ask again, and keep that too. The Second Circuit has just told every employer in New York, Connecticut and Vermont that the safe denial is a procedural one. Leave none available.

The July opinion moved the question from what your boss knew to what your boss wanted. The September footnote adds a clause: wanted, not hated, and not merely tired of your late forms. We have not seen Washington's filing; when it surfaces we will say what it asked for. If a friend sends you a headline saying the Second Circuit walked Bergin back, send them the eighty eight words. If you want the daily brief that reads the footnotes so you do not have to, the members' edition is where it lives.