Eleventh Circuit Clarifies that Unvaccinated Status Is Not a “Regarded-As” Disability and that Post-Mandate COVID-19 Protocols Do Not Trigger Religious-Accommodation Duties

Introduction

In Steven Gibbons v. Disney Parks, Experiences and Products, Inc. (consolidated with three companion appeals), the United States Court of Appeals for the Eleventh Circuit confronted a new wave of post-pandemic employment-law claims. Four former Disney employees—Adam Pajer, Stephen Cribb, Steven Gibbons, and Seth Schmidt—alleged that they were wrongfully terminated after refusing to follow Disney’s Augmented Health & Safety Protocols designed for workers who were unvaccinated or refused to disclose their vaccination status. They asserted religious discrimination under Title VII of the Civil Rights Act of 1964 and Florida’s Civil Rights Act (FCRA), disability discrimination and retaliation under the Americans with Disabilities Act (ADA), as well as related retaliation theories. The district court dismissed every count under Fed. R. Civ. P. 12(b)(6) and denied leave to amend; the employees appealed.

Sitting on the non-argument calendar, a panel composed of Judges Branch, Brasher, and Anderson unanimously affirmed. Though unpublished, the opinion is significant because it cements several key propositions that will likely guide future Covid-19-era litigation:

• The ADA’s “regarded-as” prong does not extend to an employer’s fear of a potential future impairment (e.g., contracting COVID-19), and therefore unvaccinated status is not, without more, a disability.
• Masking, social-distancing, and related protocols imposed after a vaccine mandate is withdrawn are not themselves “accommodations” that trigger the religious accommodation framework of Title VII.
• Pleading standards for disparate treatment, disparate impact, and retaliation remain rigorous post-Twombly/Iqbal; plaintiffs must allege facts—not conclusions—connecting the challenged practice to a protected trait.
• A bare request for leave to amend embedded in an opposition brief is insufficient when a Rule 16 scheduling order is in place.

Summary of the Judgment

The court disposed of each set of claims as follows:

• Religious-Discrimination (Disparate Treatment) – Plaintiffs failed to allege that Disney treated them differently from similarly situated non-religious employees; the post-mandate protocols applied uniformly to anyone who failed to verify vaccination status.
• Religious-Discrimination (Reasonable Accommodation) – Because Disney had already suspended its vaccine mandate, the only operative requirement was compliance with masking and distancing. Plaintiffs never alleged a religious conflict with those protocols nor requested an exemption, defeating the accommodation theory.
• Religious-Discrimination (Disparate Impact) – No factual allegations (statistical or otherwise) suggested that Christians were disproportionately impacted; speculation is inadequate under Twombly.
• ADA “Regarded-As” Disability – Following EEOC v. STME, LLC, the panel reaffirmed that the ADA covers current, past, or perceived current impairments—not anxieties about future illness. Plaintiffs’ unvaccinated status merely signified a potential future impairment.
• Retaliation (Title VII, FCRA) – Plaintiffs lacked a “good-faith, objectively reasonable belief” that the protocols were unlawful religious discrimination because they never sought a religion-based exemption.
• Retaliation (ADA) – Claim deemed abandoned on appeal due to perfunctory briefing.
• Leave to Amend – Plaintiffs’ cursory request inside an opposition memorandum violated both Rule 16(b)’s good-cause requirement and Circuit precedent (Wagner, Chabad Chayil); therefore, dismissal with prejudice stood.

Analysis

Precedents Cited and Their Influence

• EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019) – Crucial ADA precedent holding that fear of a future disease is outside the “regarded-as” prong. The panel imported that logic to COVID-19 and vaccination status, expanding STME’s reach.
• Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009) – Guided the court’s insistence on non-conclusory factual pleadings.
• EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015) and Bailey v. Metro Ambulance, 992 F.3d 1265 (11th Cir. 2021) – Provided the framework for disparate treatment/accommodation analyses but were distinguished because plaintiffs never articulated a religious conflict with the protocols themselves.
• EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000) – Set the tripartite test for disparate impact; plaintiffs’ lack of statistical disparity doomed that claim.
• Johnson v. Miami-Dade County, 948 F.3d 1318 (11th Cir. 2020) and Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010) – Articulated the “good-faith, reasonable belief” requirement for retaliation.
• Procedural precedents: Wagner v. Daewoo, Chabad Chayil, and Sosa v. Airprint, controlling Rule 15/16 amendment requests.

Legal Reasoning

1. No Differential Treatment on Religious Grounds
   The court stressed that Disney’s Augmented Protocols were triggered not by religion but by vaccination-status non-verification. Because Disney applied those rules to all non-verifiers—religious or not—there was no disparate treatment.
2. Lack of Conflict = No Accommodation Duty
   Under Title VII, the employer’s accommodation obligation arises only when an employee’s religious practice conflicts with a work requirement. Plaintiffs attacked the protocols as “onerous” but never said a religious doctrine forbade masking or distancing, nor did they ask for an exemption. Hence, the accommodation theory collapsed at the first element.
3. Statistical Gap Required for Disparate Impact
   Mere labels (“many Christians affected”) do not reach plausibility. Without numbers or plausible surrogate facts indicating a disproportion, Rule 12(b)(6) dismissal was appropriate.
4. Unvaccinated ≠ Disabled (or Regarded-As)
   Echoing STME, the panel reasoned that ADA coverage stops at current or past impairments. Disney’s worry that unvaccinated workers might transmit COVID-19 is a future-contingent scenario, falling outside the Act’s textual reach (42 U.S.C. § 12102(1)).
5. Retaliation Requires Reasonable Belief in Illegality
   Because plaintiffs never complained of a religious conflict with masking/distancing, their belief that Disney’s protocols were unlawful lacked objective reasonableness.
6. Procedural Guardrails on Amendments
   Rule 16(b) schedules trump the leniency of Rule 15(a). A sua sponte footnote request to amend cannot satisfy the “good cause” standard once the deadline lapses.

Potential Impact

Although unpublished, the decision offers a roadmap for lower courts, employers, and litigants:

• ADA Litigation Post-COVID-19 – Plaintiffs can no longer plausibly allege that an employer’s generic concerns about contagion translate to a “regarded-as disability” theory unless they show the employer believed the worker was presently infected or impaired.
• Religious Accommodation Claims – Employees must link a specific religious tenet to a specific protocol and must actually request accommodation to survive Rule 12(b)(6).
• Pleading Disparate Impact – The ruling reinforces that statistics or concrete proxies are indispensable; generalized assertions of demographic harm will be dismissed.
• COVID-19 Policy Design – Employers may confidently maintain differentiated protocols for unvaccinated personnel (masking, testing, distancing) so long as the criteria are religion-neutral and consistently applied.
• Procedure Over Substance – Counsel must heed scheduling orders and file dedicated Rule 15 motions; otherwise, courts will not rescue deficient pleadings.

Complex Concepts Simplified

• “Disparate Treatment” vs. “Disparate Impact”
  • Disparate Treatment = Intentional discrimination: treating one group worse because of a protected trait.
  • Disparate Impact = Neutral rule that in practice disproportionately harms a protected group.
• “Reasonable Accommodation” (Religious Context)
  When a job rule conflicts with an employee’s sincere religious practice, the employer must try to adjust the rule, unless doing so would create “undue hardship.” But a conflict must be pled first.
• ADA “Regarded-As” Prong
  Covers employees whom an employer mistakenly believes now have (or had) a substantial physical or mental impairment. It does not cover fears that an employee might become ill later.
• Rule 12(b)(6) Motion to Dismiss
  A test of legal sufficiency; the court assumes factual allegations are true but ignores legal conclusions. Plaintiffs must nudge claims across the “plausibility” line with well-pled facts.
• Rule 15 vs. Rule 16
  Rule 15 allows liberal amendments early. Once a scheduling order sets a deadline, Rule 16’s “good cause” requirement governs; tardy amendments need an explanation for the delay.

Conclusion

The Eleventh Circuit’s decision in Pajer/Cribb/Gibbons/Schmidt v. Disney crystallizes doctrinal boundaries that had begun to blur in pandemic-driven litigation. First, it fortifies the line that the ADA does not police workplace rules aimed at potential future illness; employees cannot morph vaccination debates into disability claims. Second, it underscores that Title VII’s robust religious-accommodation duties arise only when an employee articulates a genuine religious clash—and asks for an adjustment. Third, it reiterates that pleading standards remain stringent, and speculative assertions of statistical disparity or retaliation will not suffice. Last, it is a warning shot on procedure: amendments must be timely and properly sought.

Collectively, these principles offer employers clearer guidance on structuring health-and-safety measures while respecting civil-rights obligations, and they signal to plaintiffs that COVID-19-era employment claims will meet orthodox analytical scrutiny, not pandemic-specific leniency.