The panel affirmed the district court’s judgment after a jury trial against San Francisco Bay Area Rapid Transit (BART) in an employment discrimination action brought under Title VII and the California Fair Employment and Housing Act by six former employees who alleged failure to accommodate their sincere religious objections to a COVID-

19 vaccine mandate.

The panel held that BART was not entitled to judgment as a matter of law or a new trial. It was undisputed that the former employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The panel concluded that BART did not carry its burden of showing that the employees’ religious objections could not be accommodated without undue hardship. To prevail on its “undue hardship” defense, BART had to show that the alternatives to vaccination would be not only less safe, but less safe by a substantial, excessive, or unjustifiable margin. Thus, even if BART established that the vaccine was the most effective way of preventing COVID-19 transmission in the workplace, that did not mean that less effective preventive measures were per se unreasonable. BART’s reliance on guidance from public health authorities was not dispositive for purposes of showing undue hardship. In addition, BART did not show that in the context of its transportation business, in-person alternatives to vaccination would have caused undue hardship. The panel held that the district court did not err in denying BART’s motion for judgment as a matter of law because the panel could not conclude that the trial evidence only supported BART.

The panel held that BART was not entitled to a new trial because the jury’s verdict was not against the clear weight of the evidence. In addition, plaintiffs’ counsel’s violation of an order in limine excluding certain evidence of requests for religious exemptions did not require a new trial.

The panel further held that it was not plain error for the district court to order front pay for one plaintiff.

The panel found moot, and did not address, a cross-appeal from the district court’s grant of summary judgment for BART on the employees’ free exercise claims.

Concurring, Judge R. Nelson wrote that the district court’s analysis of the free exercise claims, which the majority did not reach, was troubling. The district court concluded that BART’s review process did not violate general applicability because it did not allow unfettered discretion in the treatment of religion. This court, however, has rejected the “unfettered discretion” test.

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/11/25-740.pdf