The U.S. 6th Circuit Court of Appeals recently jettisoned a required prima facie element for establishing a Title VII religious accommodation claim based upon the Supreme Court’s holding in Muldrow v. City of St. Louis. No longer must a plaintiff show that he was discharged or disciplined for failing to comply with an employment requirement that conflicts with his sincerely held religious beliefs or practices. In Bilyeu v. UT-Battelle, LLC,[1] the 6th Circuit held that a court cannot dismiss a Title VII religious accommodation claim “simply because the plaintiff’s only harm is having to choose between violating his religious beliefs and violating workplace policies.”[2]

Jeffrey and Jessica Bilyeu, a Christian married couple, worked at the Oak Ridge National Laboratory, which is managed by UT-Battelle. In August 2021, UT-Battelle announced a mandatory Covid vaccination policy, to which the Bilyeus objected on religious grounds. After the deadline passed for accommodation applications, UT-Battelle announced that employees who requested a religious accommodation would have to go on unpaid leave until the end of the pandemic. However, the indefinite unpaid leave requirement did not apply to employees who were granted medical accommodations. Shortly before the mandatory policy took effect, Mrs. Bilyeu was granted a medical accommodation because she was a breastfeeding mother. As a result, she did not miss work or pay. Mr. Bilyeu, however, was forced to go on indefinite unpaid leave. 

The Bilyeus then sued UT-Battelle, asserting Title VII claims for religious disparate treatment, failure to accommodate, and retaliation arising from the vaccine mandate. Mrs. Bilyeu’s claims were dismissed by the district court for lack of standing, which the 6th Circuit upheld. As for Mr. Bilyeu’s claims, the district court dismissed them on summary judgment solely because Mr. Bilyeu did not suffer a materially adverse employment action, i.e., that unpaid leave was not considered materially adverse because Mr. Bilyeu is “simply not being paid for time that he has not worked.”[3]

The 6th Circuit reversed the summary judgment rulings as to Mr. Bilyeu. In doing so, the court explained that the Supreme Court’s holding in Muldrow v. City of St. Louis[4] required a new analysis. In Muldrow, the Supreme Court held that Title VII does not require a plaintiff to show “that the harm incurred was significant” or that it was “serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”[5] The Supreme Court thus eliminated the “material” requirement that lower courts had added to the prerequisite of an adverse employment action.[6] Prior to Muldrow, the 6th Circuit’s Title VII prima facie standard required a showing that the plaintiff experienced an adverse employment action, which was interpreted to require a “material adverse action.”[7] But Muldrow has now abrogated that 6th Circuit standard.[8] Because the district court had solely relied on the now-abrogated “materially adverse” standard, the 6th Circuit vacated the grant of summary judgment.[9]

Most importantly, the 6th Circuit in Bilyeu revised the religious accommodation prima facie standard. Previously, the standard required a plaintiff to show that he: (1) holds a sincere religious belief that conflicts with an employment requirement; (2) has informed the employer about the conflicts; and (3) was discharged or disciplined for failing to comply with the conflicting employment requirement.[10] The 6th Circuit had long held that a plaintiff cannot satisfy prong three of this standard without showing that he has suffered “some independent harm caused by a conflict between his employment obligation and his religion.”[11] But the 6th Circuit found that Muldrow’s holding was squarely at odds with the third prong of this standard.

The “independent harm” requirement clashes head-on with Muldrow. Saying that an employee needs to suffer a harm that is independent from having to violate his religious beliefs to comply with a policy at work is just another way of saying that the employee needs to face some harm beyond the discrimination itself. After all, the harm in a failure-to-accommodate case is the inability to comply with workplace policies while also complying with the tenets of the employee’s faith. So just as Muldrow bars courts from forcing Title VII plaintiffs to show that they have suffered a “materially adverse impact,” we hold that, under Muldrow, a court cannot dismiss a Title VII complaint simply because the plaintiff’s only harm is having to choose between violating his religious beliefs and violating workplace policies.[12]

Thus, the 6th Circuit struck the third prong (dubbed the “independent harm” requirement”) from its prima facie standard for a Title VII religious accommodation claim. Because summary judgment was granted on Mr. Bilyeu’s accommodation claim because of the now-abrogated “independent harm” requirement, the 6th Circuit vacated the district court’s decision.[13]

So what does the prima facie standard for a Title VII religious accommodation claim look like now, and how will this affect claims going forward? The 6th Circuit did not articulate a new standard. However, it seems logical to conclude that the prima facie standard now only includes two prongs: (1) that the plaintiff holds a sincere religious belief that conflicts with an employment requirement; and (2) that the plaintiff has informed the employer about the conflict. Once a plaintiff establishes a prima facie case, the burden then shifts to the employer to show that (1) it offered the plaintiff a reasonable accommodation or (2) it could not have reasonably accommodated the plaintiff’s religious beliefs without undue hardship.[14] Most disputes in religious accommodation claims focus on whether a reasonable accommodation was offered or whether no accommodation could be offered because of undue hardship. Thus, elimination of the “independent harm” prong does little to resolve most cases. However, it does allow cases with no backpay damages (but potential for compensatory damages) to move forward in litigation. Will this encourage more plaintiffs to assert religious accommodation claims even in the absence of lost wages? Time will tell.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga and former chair of the TBA Labor & Employment Section.  He primarily represents individuals in employment law matters.  He can be reached at dhamill@mhemploymentlaw.com.

An item in Tuesday's TBA Today attributed an Instagram post displaying a constituent's address to Metro Nashville Councilmember Rollin Horton. The post was anonymous and did not come from Horton. The original story has been corrected.

KETHLEDGE, Circuit Judge. Under a law recently enacted in Michigan, therapists are free to offer their minor clients “counseling that provides assistance to an individual undergoing a gender transition.” M.C.L. § 330.1100a(20). But if a minor client (with his parents’ consent) seeks counseling to “change” his “behavior or gender expression” to align with his biological sex, his therapist can lose her license if she provides it. Id. The plaintiffs here offer counseling in the form of “talk therapy”: literally, spoken words and nothing more. They argue that this regime restricts their speech based on its content and viewpoint, in violation of the First Amendment. The district court denied their motion for a preliminary injunction, holding that the plaintiffs’ therapy amounts to conduct—specifically “treatment”—rather than speech. We disagree and reverse.

SUTTON, Chief Judge. Sometimes government works. And sometimes it works best after a dialogue between and within the various branches. In 2020, Congress enacted the Horseracing Integrity and Safety Act to establish a nationwide framework for regulating thoroughbred horseracing. That led to several non- delegation and anti-commandeering challenges to the validity of the Act throughout the country. The lead challenge—the facial non-delegation challenge—focused on the reality that the Act replaced several state regulatory authorities with a private corporation, the Horseracing Authority, which became the Act’s primary rulemaker and which was not subordinate to the relevant public agency, the Federal Trade Commission, in critical ways. The first circuit to assess the validity of the law, the Fifth Circuit, declared the Act facially unconstitutional because it gave “a private entity the last word” on federal law. Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black (Black I), 53 F.4th 869, 872 (5th Cir. 2022); see id. at 888–89. In response to the Fifth Circuit’s decision and after oral argument in a similar case in our circuit, Congress amended the Act to give the Federal Trade Commission discretion to “abrogate, add to, and modify” any rules that bind the industry. Consolidated Appropriations Act of 2023, Pub. L. No. 117-328, 136 Stat. 4459, 5231–32 (2022). While the Constitution does not require constructive exchanges between Congress and the federal courts, it does not discourage them either, and good government sometimes benefits from them. Mistretta v. United States, 488 U.S. 361, 408 (1989). A productive dialogue occurred in this instance, and, from our perspective, it ameliorated the concerns underlying the non-delegation challenge. In Oklahoma v. United States, we upheld the Act against a facial non-delegation challenge and an anti-commandeering challenge. 62 F.4th 221, 225 (6th Cir. 2023). The Eighth Circuit took the same view. Walmsley v. FTC, 117 F.4th 1032, 1038–40 (8th Cir. 2024). The Fifth Circuit agreed with both courts with respect to the rulemaking power created by the Act. Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black (Black II), 107 F.4th 415, 420 (5th Cir. 2024). But it facially invalidated the law on the ground that the Act afforded the Horseracing Authority the power to enforce federal law “without the FTC’s say-so.” Id. at 421. The losing parties all filed petitions for writs of certiorari in the Supreme Court. The Supreme Court held the various petitions while it considered a separate non- delegation challenge to another federal law that used a private entity in implementing the law. In FCC v. Consumers’ Research, the Court considered an as-applied challenge to the Federal Communications Commission’s Universal Service Fund, premised on the reality that the FCC relied on a private administrator’s policy recommendations in administering the program. 606 U.S. 656 (2025). The Court ruled that the program did not impermissibly delegate government authority to a private entity because the FCC retained final “decision-making authority.” Id. at 693. After its decision, the Court “GVR’d” the three certiorari petitions raising non-delegation challenges to the Horseracing Integrity and Safety Act. That is to say, the Court granted each petition, vacated the lower court judgments, and remanded the cases for reconsideration in light of Consumers’ Research. That brings us to our second look at the Act. In view of the guidance provided by the Supreme Court in Consumers’ Research and other recent decisions, we reject this facial challenge because the Act, as amended, gives the FTC, not the Horseracing Authority, the final say over the Act’s key rulemaking and enforcement provisions.

KAREN NELSON MOORE, Circuit Judge. Luther Poynter was incarcerated in the Barren County Detention Center (“BCDC”) on December 25, 2020, for contempt of court due to his failure to pay child support. On December 28, BCDC moved Poynter to a general-population cell, where Scotty Wix and Timothy Guess were also housed. Within one minute and thirty seconds of Poynter entering the cell, Guess and Wix attacked him, punching him repeatedly in the head. Poynter suffered a traumatic brain injury from the assault and is permanently impaired. Collectively, Wix and Guess had assaulted other detained persons in their cells in BCDC eleven times before they attacked Poynter, but BCDC nevertheless continued to house them in general- population cells. Poynter, by and through his guardian and sister, Anita Fernandez, sued Aaron Bennett, in his official capacity as Barren County Jailer, and Barren County under 42 U.S.C. § 1983, alleging that they violated his rights under the Due Process Clause of the Fourteenth Amendment because they were deliberately indifferent to his safety. Following discovery, Bennett and Barren County moved for summary judgment, arguing that Poynter failed to show that he suffered a constitutional violation. The district court granted summary judgment, holding that Poynter failed to show that his constitutional rights were violated or that Barren County was liable for the violation. Poynter timely appealed. For the reasons that follow, we REVERSE the district court’s summary-judgment ruling and REMAND for further proceedings consistent with this opinion.

READLER, Circuit Judge. Chicken Salad Chick, a fast-casual restaurant chain, hired Tawna Bowles to serve as a cashier/service-team member at a franchise location in northern Kentucky. Bowles, who suffers from arthritis in her knees, requested that she be allowed to sit for five minutes after every ten minutes that she stood while on the job. When Chicken Salad Chick denied her request, Bowles sued the restaurant chain under the Americans with Disabilities Act of 1990 (ADA) and the Kentucky Civil Rights Act (KCRA). In her complaint, Bowles alleged that the company failed to accommodate her disability and refused to engage in the ADA’s interactive-accommodation process. The district court granted summary judgment to Chicken Salad Chick. Because Bowles’s requested accommodation is unreasonable as a matter of law and her interactive-process claim depends upon a viable reasonable-accommodation claim, we affirm.

Appellant, an attorney residing in Kansas but licensed in both Kansas and Tennessee, filed a complaint challenging the constitutionality of Tennessee’s professional privilege tax. A three-judge panel granted summary judgment in favor of the defendant commissioner of revenue, ruling that the tax did not violate the dormant Commerce Clause. Discerning no reversible error, we affirm.

This appeal concerns the garnishment of an inherited Individual Retirement Account. Advanced Hearing Aid Group, LLC (“AHAG”), Gary Kelly, Kenneth Kelly, and Matthew Kelly (“Plaintiffs, ” collectively) filed an application for writ of garnishment in the Chancery Court for Montgomery County (“the Trial Court”) against Thomas A. Stewart (“Defendant”). Plaintiffs sought to collect a judgment against Defendant stemming from a lawsuit over AHAG. Specifically, Plaintiffs sought to garnish an IRA that Defendant inherited from his mother (“the Inherited IRA”). Defendant is both a fiduciary and beneficiary of the Inherited IRA. Defendant filed a motion to quash, citing Tenn. Code Ann. § 26-2-105(b) and its exemption of certain retirement plans from garnishment. The Trial Court held that, while the Inherited IRA was exempt from garnishment initially, it lost its exempt status because Defendant made prohibited transactions from the Inherited IRA to a disqualified party, a revocable trust of which Defendant is a 50% or more beneficiary (“the Revocable Trust”). Defendant appeals, arguing that he essentially transferred the funds to himself, which all sides agree is permitted. We hold, inter alia, that Tenn. Code Ann. § 26-2-105(b) never applied to the Inherited IRA in the first place. We hold further that, even if the Inherited IRA had once been exempt, it stopped being exempt after Defendant’s prohibited transactions. We affirm as modified. Pursuant to AHAG’s operating agreement, AHAG is entitled to an award of reasonable attorney’s fees on appeal, the amount of which the Trial Court is to determine on remand.

Tennessee state Rep. Greg Martin, R-Hixson is pushing legislation to expand the state’s death penalty law for child rapists, aiming to streamline the process and add clear “aggravating factors” that prosecutors can use when seeking capital punishment. Under current law, rapists of children under 12 may face the death penalty, but no one has yet been sentenced under that statute, in part because of vague definitions of aggravating circumstances, according to Fox 17. Martin’s bill would clarify factors such as abuse of a child under 4, positions of trust, prior convictions, incest, use of drugs or deadly weapons, filming the crime or other especially cruel actions. Advocates support harsher penalties, saying such crimes destroy a child’s spirit, while others, including some survivors and sexual assault experts, say that capital punishment is not always the preferred path, emphasizing lifetime incarceration and the complexities of abuse within families.

Former police officer Larry Bushart has filed a federal civil rights lawsuit against Perry County and its sheriff, alleging his constitutional rights were violated in retaliation for protected speech. Bushart spent 37 days in jail after sharing a meme following the assassination of political commentator Charlie Kirk. According to WBBJ-TV, Bushart was arrested in September and held on a $2 million bond after Perry County Sheriff Nick Weems claimed the meme amounted to a threat of mass violence, an allegation Bushart and his attorneys, with the assistance of the Foundation for Individual Rights and Expression, dispute. Other lawsuits have also been filed involving state and university employees who say they were terminated for comments related to Kirk.