Will (reverse) vaccination discrimination be the next big thing?

The Miami Heat made news twice yesterday. First, the rumor mill has the franchise closely tied to a deal for Toronto Raptors point guard Kyle Lowry. Of course, my beloved Philadelphia 76ers are also in the mix to bring the Villanova grad back home to the City of Brotherly Love.

But the bigger Miami Heat news is that vaccinated fans will soon have their own sections at Miami Heat games.

Here’s more from Tim Reynolds reporting here for the Associated Press:

The Heat announced plans Tuesday to open two sections in their lower bowl only for fully vaccinated fans starting with an April 1 game against Golden State. They are the first NBA team to reveal such a plan, though other clubs are believed to be working on similar measures.

Masks will still be required, even for the vaccinated fans, but social distancing rules will be slightly relaxed in those areas.

…

The Heat are devoting two sections for the fully vaccinated fans, where pods of groups will be separated by just one seat. Those fans will be admitted through a separate gate and required to show their Centers for Disease Control vaccination card, or proof thereof, along with valid identification. Fans would have to have been fully vaccinated for at least 14 days to be eligible to be in those sections.

As one might imagine, Twitter got triggered and had a field day with this news. Here’s a sampling:

Is this really discrimination?

Well, no. Vaccination status is not a protected class under federal law. And, while I’m not a licensed Florida attorney, I’m pretty sure Florida law doesn’t protect the rights of vaccinated or non-vaccinated people either.

That said, there may be some issues.

For example, what if an individual with a disability can’t get vaccinated but can wear a mask and remain socially distanced from other spectators? Title III of the ADA may require an accommodation to allow that person to sit in the good seats too. Or at least elsewhere in the lower bowl. Perhaps the same logic could apply under Title II of the Civil Rights Act of 1964 to someone who has a religious objection to getting vaccinated.

Or what if this rule had a disparate impact (a neutral rule that has an unintended discriminatory effect) on certain protected classes who lacked the same access to vaccines? While it’s not clear whether Title II supports a disparate impact claim, that wouldn’t stop a plaintiff’s lawyer from testing the waters.

What’s this got to do with employment law?

Well, if you’re considering any vaccination mandate or program in your workplace, the employment laws with which you are more familiar (e.g., Title I of the ADA and Title VII of the Civil Rights Act of 1964) have similar accommodation rules. Plus, we know that Title VII supports disparate impact claims.

So, there’s your connection, and this wasn’t just an excuse to post about basketball.

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Join me and my special guests, Simone McCormick and Amy Epstein Gluck, to discuss all the privacy implications of vaccinations, health screening, and everything else COVID-related. Simone is not only a fantastic management-side employment lawyer but also a data protection/breach expert. Amy serves as employment counsel to both outside businesses and our law firm, FisherBroyles. You won’t want to miss this.

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