United States Court of Appeals

For the First Circuit

No. 22-1710

ALICIA LOWE; JENNIFER BARBALIAS; GARTH BERENYI; DEBRA CHALMERS; 

NICOLE GIROUX; ADAM JONES; NATALIE SALAVARRIA,

Plaintiffs, Appellants,

v.

JANET T. MILLS, in her official capacity as Governor of the 

State of Maine; JEANNE M. LAMBREW, in her official capacity as 

Commissioner of the Maine Department of Health and Human 

Services; NANCY BEARDSLEY,* in her official capacity as Acting 

Director of the Maine Center for Disease Control and Prevention;

MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS 

HEALTHCARE LLC; MAINEGENERAL HEALTH; NORTHERN LIGHT EASTERN 

MAINE MEDICAL CENTER,

Defendants, Appellees,

MTM ACQUISITION, INC., d/b/a Portland Press Herald/Maine Sunday 

Telegram, Kennebec Journal, and Morning Sentinel; SJ 

ACQUISITION, INC., d/b/a Sun Journal,

Intervenors.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge] 

Before

Montecalvo, Selya, and Lynch,

Circuit Judges.

* Pursuant to Federal Rule of Appellate Procedure

43(c)(2), Nancy Beardsley has been substituted for Nirav D. Shah 

as defendant-appellee.
Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam, 

Daniel J. Schmid, and Liberty Counsel were on brief, for 

appellants.

Kimberly L. Patwardhan, Assistant Attorney General, with whom 

Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy 

Attorney General, Chief, Litigation Division, were on brief, for 

appellees Janet T. Mills, Jeanne M. Lambrew, and Nancy Beardsley.

James R. Erwin, Katharine I. Rand, Katherine L. Porter, and 

Pierce Atwood LLP on brief for appellees MaineHealth, Genesis 

HealthCare of Maine, LLC, Genesis HealthCare LLC, and MaineGeneral 

Health.

Ryan P. Dumais and Eaton Peabody on brief for appellee 

Northern Light Eastern Maine Medical Center.

May 25, 2023
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LYNCH, Circuit Judge. Since 2021, Maine has required 

certain healthcare facilities to ensure that their non-remote

workers are vaccinated against COVID-19. See 10-144-264 Me. Code 

R. § 2(A)(7); see also Me. Rev. Stat. Ann. tit. 22, § 802. We 

refer to this requirement as the "Mandate." The Mandate permits 

workers to seek exemptions for medical reasons, but not for 

religious ones. See Me. Rev. Stat. Ann. tit. 22, § 802(4-B); 

10-144-264 Me. Code R. § 3. Facilities that do not comply with 

the Mandate are subject to penalties, including fines and license 

suspension. See Me. Rev. Stat. Ann. tit. 22, § 804; 10-144-264 

Me. Code R. § 7(G).

The plaintiffs in this case are seven Maine healthcare 

workers who allege that their sincerely held religious beliefs 

prevent them from receiving any of the available COVID-19 vaccines. 

After Maine introduced the Mandate, the plaintiffs requested that 

their employers -- healthcare providers Genesis HealthCare of 

Maine, LLC; Genesis HealthCare LLC; MaineGeneral Health;

MaineHealth; and Northern Light Eastern Maine Medical Center 

(collectively, the "Providers") -- exempt them from the 

vaccination requirement based on these religious beliefs. The 

Providers denied the requests, explaining that religious 

exemptions were not available under state law. The plaintiffs' 

employment was later terminated after they refused to accept COVID19 vaccination.
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The plaintiffs filed this suit against three Maine

government officials in their official capacities (we refer to 

them collectively as the "State") and the Providers. The claims 

against the State assert, among other things, that the Mandate, by 

allowing medical but not religious exemptions, violates the Free 

Exercise and Equal Protection Clauses of the U.S. Constitution. 

Against the Providers, the plaintiffs brought, inter alia, claims

under Title VII of the Civil Rights Act of 1964, contending that 

the Providers' refusal to accommodate the plaintiffs' religious 

beliefs by exempting them from the vaccination requirement 

amounted to unlawful employment discrimination on the basis of 

religion. The district court dismissed the complaint. See

Lowe v. Mills, No. 21-cv-00242, 2022 WL 3542187, at *1 (D. Me. 

Aug. 18, 2022).

We agree with the district court that the complaint's

factual allegations establish that violating the Mandate in order 

to provide the plaintiffs' requested accommodation would have 

caused undue hardship for the Providers, and so affirm the 

dismissal of the Title VII claims.1 But we conclude that the 

plaintiffs' complaint states claims for relief under the Free 

Exercise and Equal Protection Clauses, as it is plausible, based 

on the plaintiffs' allegations and in the absence of further 

1 We also affirm the dismissal of several other claims 

that the plaintiffs do not discuss on appeal.
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factual development, that the Mandate treats comparable secular 

and religious activity dissimilarly without adequate 

justification. We affirm in part and reverse in part.

I.

A.

Maine law has required that certain licensed healthcare 

facilities ensure that their employees are vaccinated against 

various diseases since 1989.2 See 1989 Me. Laws ch. 487, § 11 

(mandating that employers require proof of either immunization 

against or serologic immunity to measles and rubella). Since 2001, 

the Maine Department of Health and Human Services (the 

"Department") has had regulatory authority to designate by rule 

diseases against which healthcare employers must require proof of 

immunization. See 2001 Me. Laws ch. 185, § 2. Prior to the COVID19 pandemic, the Department required vaccination for measles, 

mumps, rubella, chickenpox, hepatitis B, and influenza. 10-144-

264 Me. Code R. §§ 1(F), 2(A) (2021) (amended Aug. 2021). The 

plaintiffs do not challenge the requirement of vaccination against 

these diseases.

2 Current law specifies that the vaccination requirements

apply to "licensed nursing facilit[ies], residential care 

facilit[ies], intermediate care facilit[ies] for persons with 

intellectual disabilities, multi-level health care facilit[ies], 

hospital[s,] [and] home health agenc[ies]." Me. Rev. Stat. Ann.

tit. 22, § 802(4-A)(A); accord 10-144-264 Me. Code R. § 1(E).
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Until 2019, state law allowed exemptions from 

healthcare-worker vaccination requirements for most diseases under 

three circumstances: when an employee submitted (1) "a physician's 

written statement that immunization against one or more diseases 

may be medically inadvisable," or a written statement that 

vaccination was contrary to a "sincere [(2)] religious or 

[(3)] philosophical belief."3 Me. Rev. Stat. Ann. tit. 22, 

§ 802(4-B)(A)-(B) (2019) (amended 2019). In 2019, Maine's 

legislature modified these exemptions. See 2019 Me. Laws ch. 154, 

§§ 8-9. First, it amended the medical exemption to apply where 

the employee "provides a written statement from a licensed 

physician, nurse practitioner or physician assistant that, in the 

physician's, nurse practitioner's or physician assistant's 

professional judgment, immunization against one or more diseases 

may be medically inadvisable." Id. § 8. The change took effect 

September 1, 2021. Id. § 12. Second, the legislature eliminated 

the religious and philosophical exemptions, with the change taking 

effect April 19, 2020. See id. § 9. These modifications were the 

subject of a statewide veto referendum in March 2020; over 72% of 

voters voted to retain the changes.4 In April 2021, the Department 

3 Maine law also allowed -- and still allows -- an 

exemption for an individual who "declines [a] hepatitis B vaccine, 

as provided for by the relevant [federal] law." Me. Rev. Stat.

Ann. tit. 22, § 802(4-B)(C). No party argues that this exemption 

is relevant to this case, so we do not discuss it further.

4 See Tabulations for Elections Held in 2020, Dep't of the 
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amended its healthcare-worker vaccination rules, which had 

previously listed the available exemptions, to cross-reference the 

exemptions allowed by statute. See 10-144-264 Me. Code R. § 3

(2021) (as amended Apr. 2021; amended Nov. 2021).

In June 2021, the legislature amended the statute 

governing enforcement of the healthcare-worker vaccination 

requirements to augment the potential penalties for violations. 

See 2021 Me. Laws ch. 349, §§ 8-9 (codified at Me. Rev. Stat. Ann.

tit. 22, § 804(2)-(3)). The amended statute provides:

Any person who neglects, violates or 

refuses to obey the [vaccination] rules or who 

willfully obstructs or hinders the execution 

of the rules may be ordered by the 

[D]epartment . . . to cease and desist. . . . 

In the case of any person who refuses to obey 

a cease and desist order issued to enforce the 

[vaccination] rules . . . , the [D]epartment 

may impose a fine, which may not be less than 

$250 or greater than $1,000 for each 

violation. Each day that the violation 

remains uncorrected may be counted as a 

separate offense. . . .

A licensing agency under the [D]epartment 

may immediately suspend a license . . . for a 

violation under this section.

Me. Rev. Stat. Ann. tit. 22, § 804(2)-(3).

In August 2021, the Department conducted an emergency 

rulemaking that added COVID-19 to the list of diseases against 

which non-remote healthcare workers at licensed facilities, 

Sec'y of State, https://www.maine.gov/sos/cec/elec/results/

results20.html (last visited May 24, 2023).
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including the Providers, must be vaccinated. See 10-144-264 Me. 

Code R. §§ 1(F)(7), 2(A)(7) (2021) (as amended Aug. 2021; amended 

Nov. 2021). The Department made this change permanent in November 

2021.5 See id. (as amended Nov. 2021). The Mandate is the product 

of this rule and the related state statutes.

B.

Because this appeal follows a dismissal for failure to 

state a claim, we draw the facts from the plaintiffs' complaint. 

See, e.g., Douglas v. Hirshon, 63 F.4th 49, 52 (1st Cir. 2023).

The plaintiffs in this case are seven individuals 

formerly employed by the Providers in positions covered by the 

Mandate.6 The plaintiffs allege that they object to receiving any 

of the available COVID-19 vaccines on religious grounds "because 

of the connection between the . . . vaccines and the cell lines of 

aborted fetuses . . . in the vaccines' origination, production, 

development, testing, or other inputs," which conflicts with the

plaintiffs' belief "that all life is sacred, from the moment of 

5 The permanent rule differs in some respects from the 

emergency rule; for instance, it does not cover dental or emergency 

medical services providers, which the emergency rule had reached. 

Compare 10-144-264 Me. Code R. § 1, with id. (2021) (as amended 

Aug. 2021; amended Nov. 2021). No party argues that these 

differences are relevant to this appeal.

6 Three of the plaintiffs formerly worked for Northern 

Light Eastern Maine Medical Center, two worked for Genesis 

HealthCare, and one worked for each of MaineGeneral Health and 

MaineHealth.
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conception to natural death, and that abortion is a grave sin 

against God and the murder of an innocent life."

Each plaintiff requested a religious "exemption and 

accommodation" from his or her employer excusing him or her from 

vaccination. The plaintiffs "offered, and [were] ready, willing, 

and able to comply with . . . [other] health and safety 

requirements to facilitate their religious exemption," such as by 

"wear[ing] facial coverings, submit[ting] to reasonable testing 

and reporting requirements, [and] monitor[ing] symptoms."

The Providers denied each request, explaining in their 

responses that the Mandate did not permit religious exemptions. 

After the plaintiffs refused to accept vaccination, they were 

terminated from their employment.

C.

The original complaint in this action was filed on August 

25, 2021, in the U.S. District Court for the District of Maine

against Governor Janet Mills, Department Commissioner Jeanne 

Lambrew, and then-Maine Center for Disease Control and Prevention 

("Maine CDC") Director Nirav Shah7 (the officials we refer to

collectively as the "State") and the Providers.8 The complaint, 

7 Shah left office while this appeal was pending; Nancy 

Beardsley has been substituted as a defendant-appellee. See Fed. 

R. App. P. 43(c)(2).

8 The complaint originally named as a defendant the 

Northern Light Health Foundation. Northern Light Eastern Maine 

Medical Center was substituted as a defendant in January 2022, 
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filed using pseudonyms for the plaintiffs, listed as plaintiffs 

six "Jane Does" and three "John Does" who allegedly worked in 

healthcare settings and objected to the Mandate on religious 

grounds.9 Seven of the plaintiffs alleged that they were employees

or former employees of the Providers, one alleged that he was an 

employer who objected to requiring his employees to comply with 

the Mandate, and one alleged that she was employed by this employer 

plaintiff.

The complaint included five counts. Against the State, 

it challenged the Mandate under the First Amendment's Free Exercise 

Clause and the Fourteenth Amendment's Equal Protection Clause. 

Against the Providers, it raised Title VII claims for failure to 

accommodate the plaintiffs' religious beliefs. And it alleged 

that all defendants had violated the Supremacy Clause by 

purportedly claiming that the Mandate superseded Title VII's 

requirements, and had conspired to violate the plaintiffs' civil 

rights in violation of 42 U.S.C. § 1985. The plaintiffs sought 

declaratory and injunctive relief, as well as damages.

The same day the complaint was filed, the plaintiffs 

moved for a temporary restraining order and preliminary injunction

prior to the filing of the operative amended complaint.

9 The complaint also listed as plaintiffs two thousand 

"Jack Does" and "Joan Does" who allegedly had "been told not to" 

seek religious exemptions from the Mandate or had sought such 

exemptions and been denied them.
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barring the State from enforcing the Mandate against the employer 

plaintiff and requiring the Providers to grant the employee 

plaintiffs religious exemptions from COVID-19 vaccination. The 

district court denied the motion. See Does 1-6 v. Mills, 566 F. 

Supp. 3d 34, 39 (D. Me. 2021). This court affirmed, concluding 

that the plaintiffs had not shown a likelihood of success on the 

merits, that they would likely suffer irreparable harm absent 

preliminary relief, or that the balance of the equities or the 

public interest favored an injunction.10 See Does 1-6 v. Mills, 

16 F.4th 20, 29-37 (1st Cir. 2021), cert. denied sub nom. Does 1-

3 v. Mills, 142 S. Ct. 1112 (2022). The Supreme Court denied the 

plaintiffs' application for injunctive relief, see Does 1-3 v. 

Mills, 142 S. Ct. 17, 17 (2021) (mem.), and their petition for 

certiorari, see Does 1-3, 142 S. Ct. at 1112.

10 This court's decision on the plaintiffs' preliminary 

injunction appeal does not control the outcome in this appeal

because the different procedural postures implicate different 

burdens, standards of review, and factual records. That decision

evaluated, based on evidence submitted by all parties, whether the 

district court had abused its discretion in denying the preliminary 

injunction motion, and whether the plaintiffs had met their burden 

of showing, among other things, both a likelihood of success on 

the merits and irreparable harm. See Does 1-6 v. Mills, 16 F.4th

20, 29-30 (1st Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills, 

142 S. Ct. 1112 (2022). In contrast, we review a dismissal under 

Federal Rule of Civil Procedure 12(b)(6) de novo based on a record 

limited to the complaint's well-pleaded allegations, which need 

only make out plausible claims with all reasonable inferences drawn 

in the plaintiffs' favor. See, e.g., Frese v. Formella, 53 F.4th

1, 5-6 (1st Cir. 2022). The defendants properly do not contend 

that the result in Mills is binding in this appeal.
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After remand to the district court, two Maine newspapers 

intervened in the case to challenge the plaintiffs' use of 

pseudonyms. The district court granted the newspapers' motion to 

unseal the plaintiffs' identities and ordered the plaintiffs to 

file an amended complaint identifying themselves by name, see Does 

1-6 v. Mills, No. 21-cv-00242, 2022 WL 1747848, at *7 (D. Me. May 

31, 2022), and this court denied a stay of the order pending 

appeal, see Does 1-3 v. Mills, 39 F.4th 20, 22 (1st Cir. 2022). 

Following this court's decision, the plaintiffs voluntarily 

dismissed their appeal.

The plaintiffs filed the operative first amended 

complaint (the "complaint") in July 2022. This amended pleading 

removes some of the original plaintiffs (leaving only the seven 

plaintiffs who allege they were employed by the Providers),

identifies the remaining plaintiffs by name, and updates some 

factual allegations to reflect developments since the original 

complaint's filing (such as the plaintiffs' termination from their 

employment with the Providers), but includes the same claims as 

the original complaint.

The defendants moved to dismiss. The State argued that 

some of the claims must be dismissed for lack of jurisdiction under 

Federal Rule of Civil Procedure ("Rule") 12(b)(1), asserting that 

the plaintiffs lack standing to sue Governor Mills, who does not 

play a role in enforcing the Mandate, and that the Eleventh 
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Amendment bars the claims for money damages against the State. 

The State did not make similar jurisdictional arguments with 

respect to the non-damages claims for relief against the other 

Maine officials. The defendants also argued that the plaintiffs' 

allegations with respect to the other counts fail to state claims

under Rule 12(b)(6). The plaintiffs opposed the motions, though 

they did not respond to the State's arguments limited to Rule 

12(b)(1).

The district court granted the defendants' motions and 

dismissed the complaint. See Lowe, 2022 WL 3542187, at *1. It 

first dismissed the claims against Governor Mills and the damages 

claims against the State because the plaintiffs had failed to 

respond to the State's Rule 12(b)(1) arguments. See id. at *6.

Turning to the Rule 12(b)(6) motions, the court concluded that the 

Mandate is a religiously neutral law of general applicability that 

is rationally related to Maine's legitimate public health 

interests, and so does not violate the Free Exercise or Equal 

Protection Clauses. See id. at *10-15. And it reasoned that the 

plaintiffs' factual allegations establish that the Providers could 

not have offered the plaintiffs their requested accommodation 

without violating state law and risking onerous penalties, 

creating an undue hardship that precludes liability under Title 

VII. See id. at *6-10. Finally, it concluded that the Supremacy 

Clause does not provide a distinct cause of action and that the 
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complaint's allegations with respect to the conspiracy count were 

too vague and conclusory to support a plausible claim, and so 

dismissed the Supremacy Clause and conspiracy claims. See id. at 

*15.

This timely appeal followed.

II.

We review a district court's dismissal of a complaint 

under Rule 12(b)(6) de novo. E.g., Douglas, 63 F.4th at 54-55. 

To avoid dismissal, "[t]he complaint 'must contain sufficient 

factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.'" Id. at 55 (internal quotation marks 

omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

"We take the complaint's well-pleaded facts as true, and we draw 

all reasonable inferences in [the plaintiffs'] favor." Frese v. 

Formella, 53 F.4th 1, 5 (1st Cir. 2022) (quoting Barchock v. CVS 

Health Corp., 886 F.3d 43, 48 (1st Cir. 2018)). At this stage, we 

"ordinarily may only consider facts alleged in the complaint and 

exhibits attached thereto," Freeman v. Town of Hudson, 714 F.3d 

29, 35 (1st Cir. 2013), although we may also consider materials 

"fairly incorporated" in the complaint or subject to judicial 

notice, Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir. 

2004).

The plaintiffs' briefing on appeal does not address the 

dismissal of the claims against Governor Mills, the damages claims 
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against the State, or the Supremacy Clause and § 1985 conspiracy 

claims. The plaintiffs have thus waived any arguments on those 

points, and we affirm those aspects of the district court's 

decision. See, e.g., Douglas, 63 F.4th at 54 n.6. That leaves 

the free exercise and equal protection claims against the State 

and the Title VII claims against the Providers at issue.

A.

1.

We begin with the free exercise claim. "The First 

Amendment's Free Exercise Clause, as incorporated against the 

states by the Fourteenth Amendment, protects religious liberty 

against government interference." Mills, 16 F.4th at 29. A key 

issue with respect to this claim is the appropriate standard of 

scrutiny. A law that incidentally burdens religion is subject 

only to rational basis review if it is religiously neutral and 

generally applicable. E.g., id. A law that is not neutral or 

generally applicable is subject to strict scrutiny. E.g., id. A 

law is not generally applicable if it "treat[s] any comparable 

secular activity more favorably than religious exercise." 

Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam); see 

also Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021)

("A law . . . lacks general applicability if it prohibits religious 

conduct while permitting secular conduct that undermines the 

government's asserted interests in a similar way."). Applying the 
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Rule 12(b)(6) standard and drawing all reasonable inferences in 

the plaintiffs' favor, we conclude that it is plausible, in the 

absence of any factual development, that the Mandate falls in this 

category, based on the complaint's allegations that the Mandate 

allows some number of unvaccinated individuals to continue working 

in healthcare facilities based on medical exemptions while 

refusing to allow individuals to continue working while 

unvaccinated for religious reasons.

The Supreme Court has explained that "whether two 

activities are comparable for purposes of the Free Exercise Clause 

must be judged against the asserted government interest that 

justifies the regulation at issue," and that "[c]omparability is 

concerned with the risks various activities pose." Tandon, 141 S. 

Ct. at 1296; see also We the Patriots USA, Inc. v. Hochul, 17 F.4th 

266, 285-88 (2d Cir. 2021) (conducting comparability analysis in 

context of New York vaccine mandate for healthcare workers). 

Tandon, for example, held that a group of plaintiffs was likely to 

succeed in a free exercise challenge to a California law that, in 

response to the COVID-19 pandemic, sought to reduce the virus's 

spread by limiting religious gatherings in homes to no more than 

three households, but "permitt[ed] hair salons, retail stores, 

personal care services, movie theaters, private suites at sporting 

events and concerts, and indoor restaurants to bring together more 

than three households at a time." 141 S. Ct. at 1297; see id. at 
- 17 -

1298 (Kagan, J., dissenting). The Court determined that these 

secular activities were comparable to the prohibited religious 

gatherings because the record did not show that they "pose[d] a 

lesser risk of transmission than [the plaintiffs'] proposed 

religious exercise at home." Id. at 1297 (majority opinion).

As its principal interest in permitting medical but not 

religious exemptions to the Mandate, the State cites a goal of 

"revers[ing] the trajectory of falling vaccination rates in order 

to prevent communicable, preventable diseases from spreading 

in . . . healthcare facilities . . . so that all persons medically 

unable to be vaccinated [can] be protected." The State also cites 

a more general interest in "protecting the lives and health of 

Maine people." (Quoting Lowe, 2022 WL 3542187, at *14.) Drawing 

all reasonable inferences in the plaintiffs' favor, it is plausible

based on the plaintiffs' allegations that the medical exemption 

undermines these interests in a similar way to a hypothetical 

religious exemption. The availability of a medical exemption, 

like a religious exemption, could reduce vaccination rates among 

healthcare workers and increase the risk of disease spread in 

healthcare facilities, compared to a counterfactual in which the 

Mandate contains no exceptions, all workers must be vaccinated, 

and neither religious objectors nor the medically ineligible can 

continue working in healthcare facilities. Cf. Tandon, 141 S. Ct. 

at 1297 (comparing risk of disease transmission).
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The State argues that comparing the risks created by the 

two exemptions in this way is inappropriate because "Maine's 

asserted interest in providing only a medical exemption . . . is 

not based on comparative assessments of risk," but instead on 

keeping vaccination rates high to protect Mainers, and especially

Mainers medically unable to be vaccinated. But the State has not 

asserted an independent interest in maximizing vaccination rates 

apart from the public health benefits of doing so, and the Supreme 

Court has instructed us to assess comparability in the public 

health context based on "the risks various activities pose." Id.

at 1296. The State's argument that it did not independently 

conduct this type of analysis is, if anything, a reason to be 

skeptical that dismissal is appropriate absent further factual 

development.

The State also references in passing an interest in 

"safeguarding Maine's healthcare capacity." (Quoting Lowe, 2022 

WL 3542187, at *14.) While excusing some workers from vaccination 

for medical reasons may protect Maine's "healthcare capacity" by 

making more workers available, authorizing a religious exemption

plausibly could have a similar effect. We thus cannot conclude,

at least without more facts, that this interest renders the two 

exemptions incomparable.

The State asserts that the medical exemption is 

"fundamentally different . . . [from] a religious exemption because 
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a medical exemption aligns with the State's interest in protecting 

public health and, more specifically, medically vulnerable 

individuals from illness and infectious diseases, while nonmedical exemptions . . . do not." (Quoting Lowe, 2022 WL 3542187, 

at *12.) But, drawing all reasonable inferences in the plaintiffs' 

favor, it is plausible that a version of the Mandate that did not 

include a medical exemption could do an even better job of serving 

the State's asserted public health goals, and that the inclusion 

of the medical exemption undermines the State's interests in the 

same way that a religious exemption would by introducing 

unvaccinated individuals into healthcare facilities.

Of course, it is entirely possible that additional facts 

might show that the two types of exemption are not comparable. 

For example (and not by way of limitation), it may be that medical 

exemptions are likely to be rarer, more time limited, or more 

geographically diffuse than religious exemptions, such that the 

two exemptions would not have comparable public health effects. 

Cf. We the Patriots, 17 F.4th at 286 (discussing evidence 

suggesting that medical and religious exemptions to a New York 

vaccine mandate were "not comparable in terms of the 'risk' that 

they pose[d]" (quoting Tandon, 141 S. Ct. at 1296)). We reject 

the plaintiffs' apparent view that the only relevant comparison is 

between the risks posed by any one individual who is unvaccinated 

for religious reasons and one who is unvaccinated for medical 
- 20 -

reasons. Instead, we agree with the Second Circuit that Supreme 

Court precedent "suggests the appropriateness of considering 

aggregate data about transmission risks." Id. at 287; see id. at 

286-87 ("We doubt that, as an epidemiological matter, the number 

of people seeking exemptions is somehow excluded from the factors 

that the State must take into account in assessing the relative 

risks to the health of healthcare workers and the efficacy of its 

vaccination strategy . . . ."). But, absent factual development,

dismissal is unwarranted.

The State does advance a comparability argument based on 

facts outside the complaint that it argues we may nonetheless 

properly consider. The State cites a Federal Centers for Medicare 

and Medicaid Services ("CMS") interim final rule governing staff 

vaccination requirements in certain healthcare facilities,

including hospitals and long-term care facilities, that receive 

Medicare and Medicaid funds, which the State represents "covers 

many of the same healthcare entities as Maine's [Mandate]." See

Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff 

Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (codified at 42 

C.F.R. pts. 416, 418, 441, 460, 482-86, 491, 494). The State 

observes that CMS's explanation of the regulation states that the 

rule preempts state laws "providing for exemptions to the extent 

such law[s] provide[] broader grounds for exemptions than provided 

for by Federal law," id. at 61,613, and argues that the medical 
- 21 -

exemption permitted under the CMS rule, which requires a worker 

seeking an exemption to provide signed documentation from a 

"licensed practitioner" that the worker has "recognized clinical 

contraindications to COVID-19 vaccines," e.g., id. at 61,619-20, 

is more restrictive than the medical exemption under Maine law, 

see Me. Rev. Stat. Ann. tit. 22, § 802(4-B)(A), such that, in 

practice, only the narrower medical exemption under the CMS rule 

will be available in at least some of the facilities covered by 

the Mandate.

The State then argues that this narrower CMS medical 

exemption would permit only a small number of healthcare workers 

to obtain medical exemptions from the Mandate. Citing a U.S. 

Centers for Disease Control and Prevention ("CDC") fact sheet, the 

State represents that "CDC[-]recognized contraindications to 

vaccination are limited to [(1)] known allergies [to 

vaccine components], [and (2)] severe allergic reactions 

(anaphylaxis) . . . and [(3)] cardiac conditions (TTS) occurring 

after the administration of a prior dose of a COVID-19 vaccine."11 

Citing a CDC webpage, the State argues that at least two of these 

11 The original source cited by the State appears no longer 

to be available online. For an archived version, see U.S. CDC, 

Summary Document for Interim Clinical Considerations for Use of 

COVID-19 Vaccines Currently Authorized or Approved in the United 

States (Dec. 6, 2022), https://web.archive.org/web/

20221221222603/https://www.cdc.gov/vaccines/covid-19/downloads/

summary-interim-clinical-considerations.pdf.
- 22 -

three contraindications are vanishingly rare -- with approximately 

five instances of anaphylaxis and four cases of TTS occurring per 

million vaccine doses administered -- such that "the approximately 

11 or 12 persons that would suffer an adverse reaction to a COVID19 vaccination based on Maine's entire population (not just persons 

subject to the [Mandate]) is about the same [as the] number of 

[plaintiffs] in this appeal."12 On that basis, the State argues 

that "[t]he risks between medical and religious exemptions 

are . . . not comparable."

Comparisons of this sort may well be relevant to the 

comparability inquiry. See We the Patriots, 17 F.4th at 286. But 

these limited data are insufficient to resolve the comparability 

inquiry at the motion-to-dismiss stage -- even assuming we may 

properly consider them. Cf. Freeman, 714 F.3d at 35-37 (discussing 

limits on consideration of materials outside complaint in 

evaluating motion to dismiss). Even accepting, for the sake of 

argument, the State's premise that the narrower medical exemption 

under the CMS rule is relevant to the comparability analysis in 

this case, its interpretation of the CMS rule and the CDC's

clinical recommendations, and its calculations about the 

prevalence of anaphylaxis and TTS, there are several significant 

12 For the State's source, see Selected Adverse Events 

Reported After COVID-19 Vaccination, U.S. CDC (Mar. 7, 2023), 

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/

adverse-events.html.
- 23 -

gaps in the State's argument. First, the State does not explain 

how many facilities and workers covered by the Mandate actually 

fall within the CMS rule's coverage, simply stating that "many" 

do.13 Second, it does not address how many individuals might 

qualify for medical exemptions under the CMS rule based on known 

allergies to COVID-19 vaccines; it instead discusses the 

prevalence of only two of the three contraindications it describes. 

Third, the State's argument does not show how many individuals 

would likely seek religious exemptions from the Mandate, were they 

available, instead assuming that the number would be significantly 

greater than the number of plaintiffs in this case. Given those 

gaps, and the requirement at this stage to draw all reasonable 

inferences in the plaintiffs' favor, it remains plausible that the 

Mandate's medical exemption creates comparable risks to those that 

would be created by a religious exemption, warranting strict 

scrutiny.14

13 The plaintiffs' counsel stated at oral argument that the 

plaintiffs in this case worked at facilities covered by the CMS 

rule. But the State has not developed any argument that we should 

look only at facilities covered both by the CMS rule and the 

Mandate for purposes of assessing the Mandate's constitutionality. 

We express no view on the merits of such an argument, were the 

State to advance it, but, absent such an argument, we decline to 

so constrain the inquiry.

14 Our conclusion that it is plausible that the Mandate is 

subject to strict scrutiny on this basis makes it unnecessary at 

this stage to address the other arguments for strict scrutiny 

advanced by the plaintiffs, such as the assertion that the Mandate 

is not generally applicable because it creates "a mechanism for 

individualized exemptions." Fulton, 141 S. Ct. at 1877 (quoting
- 24 -

Because it is plausible, based on the complaint and 

without the benefit of factual development, that the Mandate is 

subject to strict scrutiny, dismissal would be appropriate only if 

the materials we may consider on a motion to dismiss establish 

that the Mandate survives that standard of review even when 

applying the Rule 12(b)(6) plausibility standard. Cf. Zenon v. 

Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (discussing circumstances 

in which affirmative defense, for which defendant bears burden of 

proof, may be adjudicated on motion to dismiss). Strict scrutiny 

requires the State to show that the Mandate is narrowly tailored 

to advance a compelling government interest. See, e.g., Fulton, 

141 S. Ct. at 1881. "Put another way, so long as the government 

can achieve its interests in a manner that does not burden 

religion, it must do so." Id.

The State does briefly contend that the Mandate survives 

strict scrutiny, but its argument does not justify dismissal on 

the pleadings. It argues that a statement issued by the Maine CDC 

in November 2021, when the agency made the regulation requiring 

COVID-19 vaccination for healthcare workers permanent, establishes 

that the Mandate is the least restrictive means to achieve the 

State's public health goals. The statement discusses the agency's 

reasoning concerning why alternative measures, such as mandatory 

Emp. Div. v. Smith, 494 U.S. 872, 884 (1990)).
- 25 -

masking, were insufficient to prevent the spread of COVID-19. But 

the cited discussion is insufficient, standing alone, to satisfy 

the State's burden under strict scrutiny. For example, it does 

not address the likely effects of including a religious exemption 

in the Mandate or give reasons why doing so would prevent the state 

from achieving its public health goals.15 Cf. id. at 1881-82 

(holding that a government defendant had not shown that a religious 

exemption to a challenged policy would undermine the interests the 

policy aimed to advance so as to satisfy strict scrutiny). As a 

result, even assuming we may properly consider the statement at 

the motion-to-dismiss stage, cf. Freeman, 714 F.3d at 35-37, it 

does not establish that the Mandate satisfies strict scrutiny and, 

thus, that dismissal is appropriate.

We emphasize the narrowness of our holding. We do not 

determine what standard of scrutiny should ultimately apply to the 

free exercise claim. Nor do we decide whether the Mandate survives 

the applicable level of scrutiny. Those questions are not before 

us. We hold only that, applying the plausibility standard 

applicable to Rule 12(b)(6) motions and drawing all reasonable 

inferences from the complaint's factual allegations in the 

15 A portion of the agency's statement not cited by the 

State does reference the possibility of religious exemptions to 

the Mandate, but only in observing that the state legislature had 

eliminated the option for such exemptions by statute in 2019. It 

does not independently analyze the likely effects of such 

exemptions.
- 26 -

plaintiffs' favor, the complaint states a claim under the Free 

Exercise Clause.

2.

We next consider the plaintiffs' equal protection claim,

which alleges that the Mandate burdens their free exercise rights 

and discriminates on the basis of religion. The district court 

reasoned that, because it had concluded that the free exercise 

claim warranted only rational basis review, an equal protection 

claim resting on the assertion that the Mandate burdens the 

plaintiffs' free exercise rights must also receive rational basis 

review. Lowe, 2022 WL 3542187, at *14-15 (citing Wirzburger v. 

Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005)). The court 

determined that the Mandate survives rational basis review under 

the Equal Protection Clause for the same reasons as in the free 

exercise context. See id. at *15. On appeal, the State endorses 

this reasoning. It does not develop any argument that, if we 

reverse the dismissal of the free exercise claim, we can 

nonetheless affirm the dismissal of the equal protection claim. 

As a result, because we reverse the dismissal of the free exercise 

claim, we also reverse the dismissal of the equal protection claim.

B.

We turn to the plaintiffs' Title VII claims against their 

former employers, the Providers. As relevant here, Title VII 

declares it an "unlawful employment practice for an 
- 27 -

employer . . . to discharge any individual, or otherwise to 

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, 

because of such individual's . . . religion." 42 U.S.C. 

§ 2000e-2(a). The statute defines "religion" to "include[] all 

aspects of religious observance and practice, as well as belief, 

unless an employer demonstrates that he is unable to reasonably 

accommodate to an employee's . . . religious observance or practice 

without undue hardship on the conduct of the employer's business." 

Id. § 2000e(j).

This court "appl[ies] a two-part framework in analyzing 

religious discrimination claims under Title VII." 

Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 12 

(1st Cir. 2012). "First, [a] plaintiff must make [her] prima facie

case that a bona fide religious practice conflicts with an 

employment requirement and was the reason for the adverse 

employment action." Id. (quoting Cloutier v. Costco Wholesale 

Corp., 390 F.3d 126, 133 (1st Cir. 2004)). "[T]he burden then 

shifts to the employer to show that it offered a reasonable 

accommodation or, if it did not offer an accommodation, that doing 

so would have resulted in undue hardship." Cloutier, 390 F.3d at 

133. The Providers do not dispute that the plaintiffs have 

adequately alleged a prima facie case sufficient to survive a Rule 

12(b)(6) motion, and do not claim that they offered any reasonable 
- 28 -

accommodation of the plaintiffs' religious practices. As to the 

Providers, this appeal thus turns on their undue hardship defense.

Although undue hardship is an affirmative defense, see

id., dismissal on a Rule 12(b)(6) motion is nonetheless appropriate 

if "the facts establishing the defense [are] clear on the face of 

the plaintiff[s'] pleadings" and "there is 'no doubt' that the 

plaintiff[s'] claim[s] [are] barred," Zenon, 924 F.3d at 616 (first 

alteration in original) (internal quotation marks omitted) (first 

quoting Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 114 (1st 

Cir. 2009); and then quoting Blackstone Realty LLC v. FDIC, 244 

F.3d 193, 197 (1st Cir. 2001)). The complaint and the plaintiffs' 

briefing make clear that the plaintiffs would accept only one 

accommodation: a religious exemption allowing them to continue in 

their roles without receiving a vaccine while observing other 

precautions, such as masking and testing.16 We thus need only 

determine whether that accommodation would have constituted an 

undue hardship.17 See Cloutier, 390 F.3d at 134-35. We agree with 

16 In their reply brief, the plaintiffs attempt to draw a 

distinction between their requested exemption from the Mandate and 

what they separately describe as their proposed accommodation of 

continuing in their previous roles while complying with safeguards 

such as masking and testing. Because this issue was not raised in 

their opening brief, we deem it waived. See, e.g., FinSight I 

LP v. Seaver, 50 F.4th 226, 235 (1st Cir. 2022).

17 At points in their briefing, the plaintiffs take issue

with the alleged failure by the Providers to "provide at least a 

process for seeking an accommodation." As this court has explained 

in the context of the Americans with Disabilities Act, "liability 

for failure to engage in an interactive process depends on a 
- 29 -

the district court that it would, and reject the plaintiffs' 

arguments to the contrary.

1.

Maine law makes clear that, by providing the plaintiffs 

their requested accommodation as described in the complaint, the 

Providers would have risked onerous penalties, including license 

suspension. The Mandate requires the Providers to "require for 

all employees who do not exclusively work remotely [and who are 

not medically exempted] a [c]ertificate of [i]mmunization . . . 

against . . . COVID-19." 10-144-264 Me. Code R. § 2(A); see Me. 

Rev. Stat. Ann. tit. 22, § 802(4-B) (allowing medical exemptions); 

10-144-264 Me. Code R. § 3 (permitting medical exemptions by crossreferencing section 802). Granting the plaintiffs their requested 

religious exemption would thus have placed the Providers in 

violation of the Mandate. The penalties for such a violation are 

burdensome. By statute, the Department's licensing authorities 

"may immediately suspend a [healthcare facility's] license . . . 

for a violation [of the Mandate]," and regulators may also impose 

substantial fines. Me. Rev. Stat. Ann. tit. 22, § 804(3); see id.

§ 804(2) (authorizing the Department to issue cease-and-desist 

finding that the parties could have discovered and implemented a 

reasonable accommodation through good faith efforts." Trahan v. 

Wayfair Me., LLC, 957 F.3d 54, 67 (1st Cir. 2020); see also Mills, 

16 F.4th at 36 (applying this reasoning to Title VII claim). 

Nothing in the complaint suggests -- and the plaintiffs do not 

argue -- that such a resolution was possible here.
- 30 -

orders to violators, with noncompliance punishable by fines of up 

to $1,000 per violation per day).

The complaint itself acknowledges the threat to the 

Providers' licenses. Quoting a press release from the Governor's 

office announcing the Mandate, it states: "[T]he [healthcare] 

organizations to which th[e] [Mandate] applies must ensure that 

each employee is vaccinated, with this requirement being enforced 

as a condition of the facilities' licensure."18 The complaint then 

declares (in bolded text): "Thus, the Governor has threatened to 

revoke the licenses of all health care employers who fail to 

mandate that all employees receive the COVID-19 vaccine." The 

only reasonable inference from this allegation and from the 

relevant Maine law, both of which we may properly consider in 

reviewing the dismissal of the Title VII claims, see Eves v. 

LePage, 927 F.3d 575, 578 n.2 (1st Cir. 2019) (en banc), is that 

granting the requested accommodation would have exposed the 

Providers to a substantial risk of license suspension, as well as 

monetary penalties.

The plaintiffs' counsel essentially agreed with this 

conclusion at oral argument. Counsel observed that the State had 

18 See Press Release, Janet T. Mills, Governor, State of 

Maine, Mills Administration Requires Health Care Workers to Be 

Fully Vaccinated Against COVID-19 by October 1 (Aug. 12, 2021), 

https://www.maine.gov/governor/mills/news/mills-administrationrequires-health-care-workers-be-fully-vaccinated-against-covid19-october.
- 31 -

"made clear that . . . exemptions could be granted only for medical 

reasons," that granting the plaintiffs' desired accommodation 

would require violating the Mandate, and that "noncompliant 

employers would face fines and loss of licensure." He reiterated:

Maine . . . [went] to the extreme to say [that] 

no one can grant a religious exemption, and 

that if an employer grants a religious-based 

exemption, they could lose their license and 

they will be fined. That is an extraordinary 

step by the State of Maine against its 

employers . . . . It puts the employers to a 

great extent in this damned-if-you-do, damnedif-you-don't . . . situation.

And he acknowledged that "obviously, [the plaintiffs'] real 

interest is with the State."

The risk of license suspension for violating the Mandate

would have constituted an "undue hardship on the conduct of the 

[Providers'] business" under any plausible interpretation of that 

phrase. 42 U.S.C. § 2000e(j). Title VII does not define "undue 

hardship," see id. § 2000e, but current law holds that "[a]n 

accommodation constitutes an 'undue hardship' if it would impose 

more than a de minimis cost on the employer," Cloutier, 390 F.3d 

at 134 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 

63, 84 (1977)). Cloutier, for example, held that it would have 

caused undue hardship to require a retailer to permit a cashier to 

wear facial piercings while working "because [doing so] would 

adversely affect the employer's public image," as the retailer 

"ha[d] made a determination that facial piercings, aside from 
- 32 -

earrings, detract from the 'neat, clean and professional image'

that it aim[ed] to cultivate," and "[s]uch a business determination 

[was] within [the retailer's] discretion." Id. at 136; see id. at 

135-36. The hardship in this case is far more significant: rather 

than having some intangible effect on the Providers' public images

that could -- in their own discretionary judgment -- eventually 

harm their revenues, license suspension would concretely disrupt 

the Providers' "conduct of [their] business." 42 U.S.C. 

§ 2000e(j).

We are aware that the Supreme Court has heard argument 

in a case in which the petitioner asks it to reconsider the morethan-de-minimis-cost interpretation of "undue hardship," see

Groff v. DeJoy, No. 22-174 (U.S. argued Apr. 18, 2023), but our 

holding is not dependent on that formulation of the legal standard. 

Rather, we hold that the plaintiffs' requested accommodation would 

have constituted an undue hardship under any plausible 

interpretation of the statutory text. For example, the Americans 

with Disabilities Act ("ADA") also includes an "undue hardship" 

defense: the Act forbids "discriminat[ion] [in employment] against 

a qualified individual on the basis of disability," 42 U.S.C 

§ 12112(a), including by "not making reasonable accommodations to 

the known physical or mental limitations of an otherwise qualified 

individual with a disability . . . unless [the employer] can 

demonstrate that the accommodation would impose an undue hardship 
- 33 -

on the operation of [its] business," id. § 12112(b)(5)(A). The 

statute defines "undue hardship" to "mean[] an action requiring 

significant difficulty or expense, when considered in light of [a 

statutorily defined list of] factors." Id. § 12111(10)(A); see 

also Small v. Memphis Light, Gas & Water, 952 F.3d 821, 826-27 

(6th Cir. 2020) (Thapar, J., concurring) (arguing for an 

interpretation of "undue hardship" under Title VII that requires 

"significant costs on the [employer]"); Brief for Petitioner at 

17-28, Groff, No. 22-174 (U.S. Feb. 21, 2023) (similar). The risk 

of license suspension facing the Providers would readily meet this 

standard, too; indeed, it is difficult to imagine a penalty that 

would cause a healthcare provider more significant difficulty 

"[i]n the conduct of [its] business," 42 U.S.C. § 2000e(j), than 

license suspension. Cf. EEOC v. Amego, Inc., 110 F.3d 135, 148 & 

n.15 (1st Cir. 1997) (concluding that accommodation would have

constituted undue hardship under ADA where it would have required

nonprofit to hire additional staff it could not realistically 

afford).

Other circuits' caselaw addressing the interaction 

between Title VII's undue hardship defense and state law supports 

our conclusion. For example, the Third Circuit, in United States

v. Board of Education, 911 F.2d 882 (3d Cir. 1990), concluded that 

an accommodation would have constituted an undue hardship for an 

employer school board where it would have required the board's 
- 34 -

administrators to violate a state criminal statute, thereby 

"expos[ing] [the] administrators to a substantial risk of criminal 

prosecution, fines, and expulsion from the profession."19 Id. at 

891; see id. at 890-91. While violating the Mandate would not 

carry a risk of criminal charges, it would create a substantial

risk of enforcement, fines, and license suspension. Indeed, the 

threat to the Providers' business is, if anything, more direct in 

this case than in Board of Education, where the court discussed a 

risk of charges against the defendant's employees, see id. at 891; 

here, the objects of enforcement actions would be the Providers 

themselves, see Me. Rev. Stat. Ann. tit. 22, § 804(2)-(3).

The Ninth Circuit has similarly held that accommodations 

that would force private employers to "risk liability for 

violating" state law constitute undue hardships under Title VII.20 

19 The Third Circuit declined to "address the situation in 

which . . . the chances of enforcement are negligible and 

accommodation involves no realistic hardship," or "the situation 

in which the defendant is a government entity with the 

authority . . . to control whether or not enforcement actions will 

be brought." 911 F.2d at 891. No such situation obtains here: as 

discussed above, neither state law nor the complaint provide any 

reason to doubt that enforcement was likely.

20 The Ninth Circuit recently declined to extend this rule 

to a state agency acting as an employer, reasoning that the agency 

was "part of the very state government that [was] responsible for 

creating and enforcing" the state law at issue, such that there 

was a lesser likelihood that the state law would be enforced 

against the agency and a risk that states could pass laws designed 

to excuse their agencies from compliance with Title VII.

Bolden-Hardge v. Off. of the Cal. State Controller, 63 F.4th 1215, 

1225 (9th Cir. 2023); see id. at 1225-27. The Providers are 
- 35 -

Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir. 

1984); see also Sutton v. Providence St. Joseph Med. Ctr., 192 

F.3d 826, 830 (9th Cir. 1999) ("[C]ourts agree that an employer is 

not liable under Title VII when accommodating an employee's 

religious beliefs would require the employer to violate federal or 

state law."); Tagore v. United States, 735 F.3d 324, 329-30 (5th 

Cir. 2013) (citing Sutton with approval in a case involving a

proposed accommodation that would require an employer to violate 

federal law).

Several circuits have also held that accommodations that 

would require employers to violate other federal laws are not 

required by Title VII -- sometimes on the theory that such a 

violation precludes the plaintiff from making out a prima facie 

case, and sometimes on the theory that such an accommodation would 

constitute an undue hardship. See Truskey v. Vilsack, No. 21-

5821, 2022 WL 3572980, at *3 (6th Cir. Aug. 19, 2022) (unpublished 

decision) (collecting cases from Fourth, Sixth, Eighth, Ninth, 

Tenth, and Eleventh Circuits).

We need not and do not decide whether every accommodation 

that would require an employer to violate state or federal law 

would necessarily constitute an undue hardship under Title VII. 

But these out-of-circuit decisions confirm that potential 

private employers, so this reasoning does not apply here.
- 36 -

penalties for violating other laws can render a proposed 

accommodation an undue hardship. And, for the reasons described 

above, we hold that this case falls in that category.

2.

The plaintiffs' counterarguments fail. Importantly, 

they do not develop any meaningful argument that the risk of 

license suspension in this case is insufficiently burdensome as to

have constituted an undue hardship for the Providers. Indeed, as 

discussed above, the plaintiffs' counsel at oral argument

acknowledged the difficulty faced by the Providers, characterizing 

it as a "damned-if-you-do, damned-if-you-don't . . . situation." 

The plaintiffs instead argue that factual issues make dismissal

under Rule 12(b)(6) inappropriate and that Title VII preempts the 

Mandate and requires the Providers to grant the requested 

accommodation. We find these contentions unpersuasive.

The plaintiffs assert generally that whether their

requested accommodation would constitute an undue hardship "is a 

question of fact not suitable for determination on a motion to 

dismiss." As discussed above, however, we conclude that the 

complaint's allegations and the relevant Maine law permit no 

reasonable inference but that granting the plaintiffs their 

requested accommodation would have exposed the Providers to a 

substantial risk of license suspension and other penalties, 

creating an undue hardship. See Zenon, 924 F.3d at 616 (discussing 
- 37 -

adjudication of affirmative defenses at Rule 12(b)(6) stage); see 

also Iqbal, 556 U.S. at 678 (describing Rule 12(b)(6) plausibility 

standard).

The plaintiffs offer two more specific purported factual 

issues that, they argue, preclude dismissal, but these arguments 

fare no better. First, they contend that they "plead[ed] and 

offered available alternatives to compulsory vaccination," such as 

masking and testing. This argument misunderstands the undue 

hardship that the Providers cite, which is not the safety risk 

from allowing the plaintiffs to work while unvaccinated, but 

instead the penalties that the Providers would have faced for 

violating the Mandate. Those penalties would have applied -- and 

constituted an undue hardship -- regardless of the factual merits 

of the plaintiffs' view that their proposed alternatives would be

adequate in terms of safety.

Second, the plaintiffs argue in their briefing, based on

a Department guidance document, that their requested accommodation

would not actually have violated the Mandate. The guidance

document at issue states that the Mandate "does not prohibit 

employers from providing accommodations for employees' sincerely 

held religious beliefs, observances, or practices that may 

otherwise be required by Title VII," but that "implementation, if 

such accommodations are provided by a [healthcare employer], must 
- 38 -

comply with the [Mandate]."21 The plaintiffs assert that the first 

piece of quoted language shows that the Providers could lawfully 

have granted their requested accommodation. But this reading 

ignores the second piece of quoted language; read as a whole, the 

guidance document makes plain that employers could provide 

religious accommodations other than exemptions (for instance, by 

authorizing remote work, which would place the worker outside the 

Mandate's scope) but could not offer religious exemptions to 

workers covered by the Mandate (since doing so would not comply 

with the Mandate). The plaintiffs have never alleged or argued 

that they would have accepted any accommodations that would have 

placed them outside the Mandate's scope. And certainly the 

Providers could not have confidently relied on the guidance

document to conclude that offering religious exemptions would not 

expose them to penalties for violating the Mandate, such as would 

render the plaintiffs' requested accommodation not an undue 

hardship. Indeed, the plaintiffs' counsel appeared to retreat 

from this argument at oral argument, recognizing that "the Maine 

CDC made clear that . . . exemptions could be granted only for 

medical reasons," and that "if [the Providers] . . . even consider 

21 Health Care Worker Vaccination FAQs, State of Me. COVID19 Response (Nov. 10, 2021), https://www.maine.gov/covid19/

vaccines/public-faq/health-care-worker-vaccination.
- 39 -

[religious exemptions], then they're violating the . . . Mandate." 

The guidance document does not save the Title VII claim.

In their final counterargument, the plaintiffs assert 

that Title VII preempts the Mandate, such that the Providers were 

required to offer the requested accommodation notwithstanding 

state law. The Supreme Court has explained that Title VII preempts 

state laws "only if they actually conflict with federal law." Cal. 

Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281 (1987); see

id. at 281-83 (discussing "[t]he narrow scope of pre-emption 

available under [Title VII]"). The plaintiffs' argument fails 

because there is no "actual[] conflict" in this case. As relevant 

here, Title VII could preempt the Mandate only if it required the 

Providers to grant the plaintiffs' requested accommodation. But 

granting that accommodation would have exposed the Providers to 

penalties for violating the Mandate, and thus constituted an undue 

hardship not required by Title VII.

This conclusion follows from Title VII's text and 

structure, which make clear that the undue hardship analysis 

precedes any conclusion about preemption of state law. The undue 

hardship defense is built into the statutory definition of 

"religion," see 42 U.S.C. § 2000e(j), such that an employment 

action cannot constitute discrimination on the basis of religion, 

and an employer cannot be liable under Title VII for religious 

discrimination, if the undue hardship defense applies, see, e.g., 
- 40 -

Bd. of Educ., 911 F.2d at 886. In other words, while the 

plaintiffs' counsel at oral argument stated that the need to comply

with the Mandate, on the one hand, and with Title VII, on the 

other, placed the Providers in a "damned-if-you-do, damned-if-youdon't . . . situation," the undue hardship defense clearly applies 

on the pleadings. Because the requested accommodation would have 

imposed undue hardship, Title VII does not require it.

The plaintiffs rely on 42 U.S.C. § 2000e-7, which 

provides: 

Nothing in [Title VII] shall be deemed to 

exempt or relieve any person from any 

liability, duty, penalty, or punishment 

provided by any present or future law of any 

State . . . , other than any such law which 

purports to require or permit the doing of any 

act which would be an unlawful employment 

practice under [Title VII].

They argue that this provision exempts the Providers from liability 

for violating the Mandate, which, they assert, purports to require 

the Providers to violate Title VII by denying them their preferred 

accommodation.

The plaintiffs' position takes an extremely broad view 

of Title VII's requirements for employers. Cf. We the Patriots, 

17 F.4th at 291-92 (explaining that "Title VII does not require 

covered entities to provide [whatever] accommodation . . .

[p]laintiffs prefer"). But we need not address the merits of this 

interpretation because, in any event, the Providers do not have 
- 41 -

enforcement authority with respect to the Mandate, and they have 

no power to determine for the State that the Mandate is invalid 

under Title VII. Violating the Mandate would thus have exposed

them to a risk of immediate license suspension -- an undue hardship 

that Title VII did not require them to suffer.22

The applicability of the undue hardship defense 

distinguishes this case from those the plaintiffs cite applying 

§ 2000e-7 in the context of alleged racial discrimination -- where

Title VII offers no undue hardship defense. See, e.g., Guardians 

Ass'n of the N.Y.C. Police Dep't, Inc. v. Civ. Serv. Comm'n, 630 

F.2d 79, 104-05 (2d Cir. 1980) (explaining that an employer could 

not justify an employment policy with a "disparate racial impact" 

based on the "requirements of state law"). The plaintiffs cite no 

case holding that Title VII preempted a state law in analogous 

circumstances involving religion, and, as discussed above, 

multiple circuits have held that potential penalties under state 

22 The plaintiffs have never argued that there were any 

steps the Providers could or should have taken to test the 

Mandate's legal validity under Title VII or to determine whether 

granting the plaintiffs their requested accommodation would result 

in enforcement actions by the State, short of defying the Mandate 

and risking penalties. We thus need not decide whether taking 

such steps would have constituted an undue hardship. Cf., e.g., 

Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000) (holding 

that it would have been an undue hardship to require an employer 

to seek a waiver from an IRS requirement that employers provide 

their employees' Social Security numbers to the agency).
- 42 -

law can establish an undue hardship defense. See Bd. of Educ., 

911 F.2d at 890-91; Bhatia, 734 F.2d at 1384.

We conclude that the Title VII claims were properly 

dismissed.

III.

For the foregoing reasons, we affirm the dismissal of 

the plaintiffs' claims under the Supremacy Clause, § 1985, and 

Title VII. We also affirm the dismissal of the plaintiffs' claims 

against Governor Mills and their damages claims against the State. 

We reverse the dismissal of the remaining claims, and remand for 

proceedings consistent with this opinion. All parties shall bear 

their own costs.