Lewis-Williams v. San Francisco Bay Area Rapid Transit District

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TONYA LEWIS-WILLIAMS; No. 25-618 RAYMOND LOCKETT; D.C. Nos. ROSALIND PARKER; BRADFORD 3:22-cv-06119- MITCHELL; RYAN RIVERA; SZU- WHA; CHENG SUN, 3:22-cv-09193- WHA Plaintiffs - Appellees, 3:22-cv-07720- v. WHA SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, OPINION Defendant - Appellant. TONYA LEWIS-WILLIAMS; No. 25-619 RAYMOND LOCKETT; ROSALIND PARKER; BRADFORD D.C. Nos. MITCHELL; RYAN RIVERA; SZU- 3:22-cv-06119- CHENG SUN, WHA; 3:22-cv-09193- Plaintiffs - Appellees, WHA; v. 3:22-cv-07720- WHA SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant - Appellant. 2 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. TONYA LEWIS-WILLIAMS; No. 25-740 RAYMOND LOCKETT; ROSALIND PARKER; BRADFORD D.C. Nos. MITCHELL; RYAN RIVERA; SZU- 3:22-cv-06119- CHENG SUN, WHA; 3:22-cv-09193- Plaintiffs - Appellants, WHA; 3:22-cv-07720- v. WHA SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant - Appellee. Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted April 15, 2026 San Francisco, California Filed September 11, 2026 Before: Johnnie B. Rawlinson, Ryan D. Nelson, and Bridget S. Bade, Circuit Judges. Opinion by Judge R. Nelson; Concurrence by Judge R. Nelson  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 3 SUMMARY* Employment Discrimination The panel affirmed the district court’s judgment after a jury trial against San Francisco Bay Area Rapid Transit (BART) in an employment discrimination action brought under Title VII and the California Fair Employment and Housing Act by six former employees who alleged failure to accommodate their sincere religious objections to a COVID- 19 vaccine mandate. The panel held that BART was not entitled to judgment as a matter of law or a new trial. It was undisputed that the former employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The panel concluded that BART did not carry its burden of showing that the employees’ religious objections could not be accommodated without undue hardship. To prevail on its “undue hardship” defense, BART had to show that the alternatives to vaccination would be not only less safe, but less safe by a substantial, excessive, or unjustifiable margin. Thus, even if BART established that the vaccine was the most effective way of preventing COVID-19 transmission in the workplace, that did not mean that less effective preventive measures were per se unreasonable. BART’s reliance on guidance from public health authorities was not dispositive for purposes of showing undue hardship. In addition, BART did not show * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. that in the context of its transportation business, in-person alternatives to vaccination would have caused undue hardship. The panel held that the district court did not err in denying BART’s motion for judgment as a matter of law because the panel could not conclude that the trial evidence only supported BART. The panel held that BART was not entitled to a new trial because the jury’s verdict was not against the clear weight of the evidence. In addition, plaintiffs’ counsel’s violation of an order in limine excluding certain evidence of requests for religious exemptions did not require a new trial. The panel further held that it was not plain error for the district court to order front pay for one plaintiff. The panel found moot, and did not address, a cross- appeal from the district court’s grant of summary judgment for BART on the employees’ free exercise claims. Concurring, Judge R. Nelson wrote that the district court’s analysis of the free exercise claims, which the majority did not reach, was troubling. The district court concluded that BART’s review process did not violate general applicability because it did not allow unfettered discretion in the treatment of religion. This court, however, has rejected the “unfettered discretion” test.  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 5 COUNSEL Gage S. Fender (argued), Matthew McReynolds (argued), and Kevin T. Snider (argued), Pacific Justice Institute, Sacramento, California; Susan J. Clouthier and Gage S. Fender, Clouthier Law PLLC, The Woodlands, Texas; for Plaintiffs-Appellees. James M. Hanlon Jr. (argued), Dawson P. Honey, and Victoria R. Nuetzel, Glynn Finley Mortl Hanlon & Friedenberg LLP, Walnut Creek, California; Sam N. Dawood, Davis Wright Tremaine LLP, San Francisco, California; for Defendant-Appellant. OPINION R. NELSON, Circuit Judge: San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict of $7,824,580 to six former employees for Title VII violations for failure to accommodate their sincere religious objections to a COVID- 19 vaccine mandate. Because sufficient evidence supports the jury’s verdict, we affirm. I A This case arose as a challenge to San Francisco Bay Area Rapid Transit’s (BART) mandatory COVID-19 vaccination policy by employees who sought to opt out of vaccination, citing religious objections. From October 2021 through early 2022, COVID-19 presented a serious public health 6 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. emergency—resulting in many hospitalizations and infections both nationwide and in California. In response, BART issued a COVID-19 vaccination policy in October 2021. Under that policy, employees had to be fully vaccinated by December 13, 2021, unless they qualified for a medical or religious exemption guaranteed to them by state and federal anti-discrimination law. To determine whether an employee was entitled to an accommodation based on a religious objection to the vaccine mandate, BART’s Leave Management Department prepared forms to collect information from employees concerning the beliefs that prevented them from being vaccinated and what accommodation each employee sought. If more information was required, the Leave Management Department interviewed individual employees to evaluate whether they had a sincerely held religious belief against vaccination. After reviewing these requests, the Leave Management Department concluded that 70 employees qualified for a potential accommodation. BART then considered whether it could reasonably accommodate the religious beliefs of those 70 employees. BART concluded that it could not accommodate any of those employees without suffering an undue hardship. BART provided those employees with an ultimatum to either take the vaccine or lose their job. After receiving this ultimatum, nearly half of the 70 employees chose the vaccine; the other 37 employees resigned, retired, or were terminated. Altogether, 73 employees who requested a religious exemption lost their jobs—36 were denied an exemption, and 37 received an exemption but were told by BART that they could not be accommodated.  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 7 B In 2023, 35 former BART employees who had lost their jobs because of BART’s vaccine mandate and religious accommodation process filed suit. Plaintiffs asserted claims for: (1) failure to provide religious accommodation in violation of Title VII of the Civil Rights Act of 1964; (2) deprivation of their right to the free exercise of religion, a right secured by the First and Fourteenth Amendments, under color of state law; and (3) failure to provide religious accommodation under the California Fair Employment and Housing Act (FEHA). See 42 U.S.C. § 2000e-2(a); U.S. Const. amends. I, XIV; 42 U.S.C. § 1983; Cal. Gov. Code § 12940(a). The parties cross-moved for summary judgment. Plaintiffs moved on all three of their claims. BART separately moved against plaintiffs’ Free Exercise claim under § 1983. The district court granted BART summary judgment on the § 1983 claim and denied plaintiffs summary judgment on their three claims. After the district court’s order, 18 plaintiffs dismissed their claims and 17 remained. The lawsuits of the remaining plaintiffs were then consolidated and scheduled for sequential trials in manageable groups. In July 2024, the district court conducted a two-phase trial for the first group of plaintiffs—with the first phase to determine whether seven plaintiffs had established a prima facie case under Title VII and FEHA, and the second phase to determine whether BART could successfully assert the affirmative defense of undue hardship. See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004); see also Cook v. Lindsay Olive Growers, 911 F.2d 233, 241 (9th Cir. 1990) (“Federal precedent applies to provisions of the 8 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. California Fair Employment and Housing Act analogous to Title VII.”). On the first phase, a jury unanimously concluded that the first group of plaintiffs had established a prima facie case on their remaining claims. But the jury deadlocked on the second phase on BART’s affirmative defense of undue hardship. Accordingly, the district court took the verdict with respect to the first phase and declared a mistrial on the affirmative defense. After the mistrial, all but six plaintiffs—Tonya Lewis-Williams, Raymond Lockett, Rosalind Parker, Bradford Mitchell, Ryan Rivera, and Szu- Cheng Sun (collectively, the Six Former Employees)— settled and dismissed their claims against BART. In October 2024, the district court held a new two-phase trial for the Six Former Employees, with the first phase now addressing BART’s undue hardship defense, and the second phase addressing all other issues. At the end of the first phase, BART moved for judgment as a matter of law (JMOL) under Federal Rule of Civil Procedure 50(a). The district court took the motion under submission, and the jury later returned a verdict finding BART had not established its affirmative defense. In the second phase, the same jury returned a verdict for the Six Former Employees and an award collectively totaling $7,824,580. BART renewed its request for JMOL under Rule 50(b) and alternatively sought a new trial under Rule 59. The district court denied both motions. BART timely appealed. The Six Former Employees cross appealed the order granting summary judgment on their § 1983 Free Exercise claim. One of the former employees, Ryan Rivera, also appealed the district court’s failure to order his reinstatement.  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 9 II The district court had jurisdiction under 28 U.S.C. §§ 1331, 1367(a) and 42 U.S.C. § 2000-e5(f)(3). We have jurisdiction under 28 U.S.C. § 1291 over both the appeal and the cross appeal. We review a district court’s denial of JMOL de novo. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). For a Rule 50(b) motion, we consider whether the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion— one contrary to the jury’s verdict. Est. of Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016). The panel must draw all reasonable inferences for the nonmoving party. EEOC v. GoDaddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). We review a district court’s denial of a Rule 59 motion for a new trial for abuse of discretion. Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1189 (9th Cir. 2002). III We conclude that BART is neither entitled to JMOL nor a new jury trial. A BART argues that the district court erred in denying JMOL because BART proved its affirmative defense of undue hardship on the Title VII and FEHA claims. BART bears a heavy burden. On a Rule 50(b) motion, “[a] jury’s verdict must be upheld if it is supported by substantial evidence that is adequate to support the jury’s findings, even if contrary findings are also possible.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 797 (9th Cir. 2017) (quoting 10 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014)). We ask whether the “only conclusion that a reasonable jury could draw” is contrary to the jury’s verdict. Harper v. City of Los Angeles, 533 F.3d 1010, 1022–23 (9th Cir. 2008); see also Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35 (1944) (“Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”). “Title VII makes it an unlawful employment practice for an employer . . . to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s . . . religion.” Petersen v. Snohomish Reg’l Fire & Rescue, 150 F.4th 1211, 1216 (9th Cir. 2025) (quoting 42 U.S.C. § 2000e-2(a)). We analyze such claims under a two- step framework. First, a plaintiff must set forth a prima facie case that “(1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement.” Id. (quoting Hewlett-Packard, 358 F.3d at 606). Once a plaintiff makes out a prima facie failure-to-accommodate case, the burden shifts to the employer to show that it initiated good faith efforts to accommodate the employee’s religious practices or that it could not do so reasonably without undue hardship. Id. It is undisputed that the Six Former Employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The propriety of JMOL therefore turns on whether BART carried its burden of showing that Plaintiffs’  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 11 religious objections could not be accommodated without undue hardship. BART’s argument for JMOL proceeds in two steps. First, BART argues that unrebutted testimony established that (1) public health guidance at the time advised that vaccination was the most effective measure for preventing the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unacceptable from a safety and operational standpoint for unvaccinated employees to perform in-person work, and (3) its reliance on such guidance is dispositive for purposes of the undue-hardship determination because a religious accommodation that imposes an increased safety risk for others constitutes an undue hardship as a matter of law. Second, BART argues that remote work and unpaid leave—the only accommodations as safe as vaccination—were not reasonable accommodations as a matter of law because the only rational conclusion based on the evidence introduced at trial was that Plaintiffs could not perform the essential duties of their jobs remotely and any unpaid leave would have been indefinite. For reasons explained below, we conclude that BART is not entitled to JMOL. To prevail on its “undue hardship” defense, BART had to show that the alternatives to vaccination would be not only less safe, but less safe by a “substantial,” “excessive,” or “unjustifiable” margin. Groff v. DeJoy, 600 U.S. 447, 468–73 (2023) (cleaned up). Thus, even if BART established that the vaccine was the most effective way of preventing COVID transmission in the workplace, that does not mean that less effective preventive measures are per se unreasonable accommodations. And although BART is correct that “the views of public health authorities, such as the U.S. Public Health Service, CDC, 12 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. and the National Institutes of Health are of special weight and authority . . . [t]he views of these organizations are not conclusive.” Bragdon v. Abbott, 524 U.S. 624, 650 (1998). BART also introduced no evidence of the public health guidance it relied on, and the jury was not required to infer that BART’s non-percipient expert witnesses accurately described the scientific information that supported BART’s accommodation decisions. See Backus v. Owe Sam Goon, 235 F. 847, 853 (9th Cir. 1916); Sec.-First Nat’l Bank of L.A. v. Lutz, 322 F.2d 348, 355 (9th Cir. 1963). Given that BART is not in the health and safety business, that the Six Former Employees all had roles that required minimal close-quarters interaction with other individuals, and that no evidence suggests that the Six Former Employees were unable or unwilling to wear a mask or take similar precautions, substantial evidence supports the jury’s verdict. 1 We start with BART’s contention that its reliance on guidance from public health authorities is dispositive for purposes of showing an undue hardship. The problems begin with the baseline premise of BART’s argument—that an accommodation to its vaccination requirement would be reasonable “only if it provided the same level of safety as vaccination.” In other words, BART argues that any increase in safety risk resulting from an accommodation is an undue hardship. This argument conflicts with the Supreme Court’s holding in Groff that an accommodation does not impose an “undue hardship” unless the burdens would be “substantial,” “excessive,” or “unjustifiable.” 600 U.S. at 468–73 (cleaned up). Common sense dictates that safety risks, like any other category of risk, are capable of justification. Cf. Bragdon, 524 U.S. at 649 (“Because few, if any, activities in life are risk free, [we] do not ask whether  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 13 a risk exists, but whether it is significant.”); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 664 (1980) (Burger, C.J., concurring) (“Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.”). Accordingly, an employer is not absolved of its burden of proving that an accommodation is unreasonable by merely showing that the accommodation has safety implications. Rather, employers are ordinarily entitled to rely on the views of public health authorities, along with the best “objective, scientific information available” at the time, when making accommodation decisions, Petersen, 150 F.4th at 1223 (quoting Rodrique v. Hearst Commc’ns, Inc., 126 F.4th 85, 91 (1st Cir. 2025)). See Williams v. Legacy Health, 174 F.4th 1201, 1207 (9th Cir. 2026) (explaining that the accommodation decision is assessed based on the information available at the time of the decision, not hindsight). That brings us to the next problem with BART’s argument: the public health guidance that BART relied on is not in the record. BART likewise did not call any of the infectious disease experts or public health officials with whom BART’s pandemic task force consulted when formulating its vaccination policy. Instead, BART put forward the testimony of two after-the-fact litigation experts—Dr. Joseph Lewnard, an infectious disease epidemiologist, and Dr. Nancy McClellan, an industrial hygienist—to establish the state of the public health guidance and the risks BART would be taking by allowing unvaccinated employees to work in person. Contrary to BART’s contentions, the jury was not required to accept BART’s expert, non-percipient witness testimony as conclusive evidence of the scientific information that drove BART’s decision-making. 14 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. Moreover, “[e]xpert testimony . . . is not conclusive upon the trier of fact, even though unimpeached and uncontradicted, since the trier may apply his own experience or knowledge in determining how far to follow the expressed opinion.” Lutz, 322 F.2d at 355. The expert testimony thus did not establish that in-person alternatives to BART’s vaccine requirement—masking, social distancing, and other such measures—would be unreasonable accommodations as a matter of law. 2 The above conclusion, however, is not necessarily fatal to BART’s argument. Even if in-person alternatives to vaccination are not per se unreasonable accommodations in the context of BART’s business, they may still impose an undue hardship considering either the nature of that business, the religious objector’s work duties, or some other factor (or combination of factors). See Groff, 600 U.S. at 468–73. Our decisions in Petersen and Williams are illustrative. In Petersen, eight firefighters sued their employer for denying them religious accommodations for a COVID-19 vaccine mandate. 150 F.4th at 1213–14. Because the fire department’s business was to provide the public with “emergency, even life-saving, services” and undisputed evidence established that “firefighters work in group settings, interfacing constantly with coworkers and the public, both inside and outdoors” and that the plaintiffs often did not abide by masking and social distancing guidelines, we held that “testing, masking, and social distancing in lieu of vaccination” was not a reasonable accommodation in light of the substantial burdens that would be imposed on the fire department. Id. at 1218–20.  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 15 Defendants in Petersen also risked serious financial and operational hardships likely to be incurred had they accommodated the firefighters (including potentially losing almost a quarter of their firefighting force to illness and losing a $400,000 annual contract). See id. at 1218–23.1 In Williams, nine healthcare professionals sued their employer, “a regional healthcare system that operates eight hospitals throughout the Willamette Valley,” on the same basis—failure to provide accommodations for a COVID-19 vaccine mandate. 174 F.4th at 1204. And in holding that alternative measures to vaccination would impose an “undue hardship” on the conduct of the defendant’s business, we highlighted that the defendant was in the “business of providing safe and effective medical care to the public,” that unvaccinated “frontline [hospital] workers” such as the plaintiffs “faced a unique risk of infection,” and that the nature of the plaintiffs’ work duties “necessitated close contact with either patients or staff” and therefore created an outsized risk of causing staffing issues and undermining the efficacy of patient care. Id. at 1204, 1206–07. Those factors are not present here. Unlike the defendants in Petersen and Williams, the focus of BART’s business is not health and safety, but transportation. And unlike the plaintiffs in those cases, the roles occupied by the Six Former Employees before their termination did not require 1 By contrast, BART had received millions of dollars in federal COVID- 19 relief funds. The jury could reasonably infer that BART used those funds to ensure that it did not engage in mass layoffs during the pandemic. The employees who lost their jobs were the religious dissenters BART failed to accommodate. Thus, a reasonable jury could also have inferred that BART had the resources and excess workforce to accommodate the Six Former Employees without suffering an undue hardship. See Groff, 600 U.S. at 468. 16 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. them to be in close, frequent contact with the public or most coworkers: • Tonya Lewis-Williams was a “utility worker,” responsible for “clean[ing] up the debris off the platform, the trains, some offices,” and other such places. Lewis-Williams testified that “[m]ost of the time” she was by herself and not in contact with passengers or her co- workers. • Bradford Mitchell was a “rolling stock component maintenance superintendent,” responsible for supervising the maintenance of train cars at the Richmond shop. He testified that he had no contact with the public and minimal contact with other BART employees— any necessary in-person meetings with shop employees were conducted in “a large open bay area” with a 40-foot-high ceiling and floor space sufficient to fit eight train cars, and after the pandemic began, meetings took place “[v]ery seldom[ly].” • Rosalind Parker was a “customer service clerk,” responsible for selling tickets, bike locker rentals, and company store items, among other things. In her job, she worked alongside four co-workers and interacted with the public from behind a bullet-proof window. Her job required no LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 17 “direct contact” with customers—money, tickets, and other such items were collected through a slot, and communication with the customers occurred through a microphone. After the pandemic started, BART installed large polyglass partitions that separated her workspace from the other three clerks. • Szu-Cheng Sun was a “computer electronic technician,” responsible for “install[ing], maintain[ing], and repair[ing] computer-related equipment.” Sun testified that “90 percent of [his] work could be done alone or remotely,” that he had “no interaction with patrons or riders at all,” and that only in “rare instances” presenting “[s]afety concerns” would he have to work alongside a coworker. • Raymond Lockett was an “operations supervisor liaison,” responsible for meeting and escorting contractors around BART facilities (as well as BART employees who needed access to a facility they did not ordinarily have access to) and ensuring that such individuals did not create any safety concerns or other liabilities for BART. Lockett testified that his work was “primarily outside” and generally at a safe distance from other individuals. 18 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. • Ryan Rivera was a “[s]torekeeper,” responsible for making requisitions and keeping inventory, among other duties. Rivera testified that, as a “senior lead,” he was relieved of all “physical duties” associated with his position and could have worked alone in his isolated office, which had “its own ventilation system with windows and filters.” Nor does BART point to any trial evidence suggesting that the Six Former Employees would have been unable or unwilling to wear a mask or take other appropriate measures aimed at preventing transmission. Accordingly, the jury could have reasonably concluded that the burdens imposed by accommodating the Six Former Employees’ religious objections would not have been substantial, excessive, or unjustifiable. Groff, 600 U.S. at 468–73; Harper, 533 F.3d at 1022–23. We are especially hesitant to upend a jury verdict that rests on an “undue hardship” determination. The “undue hardship” determination is a “fact-specific inquiry” that “takes into account all relevant factors in the case at hand.” Groff, 600 U.S. at 468, 470. Fact-specific determinations are generally best suited for jury resolution. Cf. In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996) (“The ‘materiality’ of an omission is a fact-specific determination that should ordinarily be assessed by a jury.”). “The jury, after all, represents the conscience of the community.” Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003). Given these features of the “undue hardship” determination, only in cases—like Petersen and Williams— where the excessiveness of the burden imposed “is so  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 19 obvious that reasonable minds could not differ” is this question “appropriately resolved as a matter of law.” Stac Elecs., 89 F.3d at 1405 (quoting Fecht v. The Price Co., 70 F.3d 1078, 1081 (9th Cir. 1995)). This is not one of those cases. And the jury resolved those factual disputes reasonably, rendering a verdict for the Six Former Employees. Accordingly, we cannot conclude that the trial evidence only supports BART—so the district court did not err in denying BART’s motion for JMOL under Rule 50(b). B Alternatively, BART argues that it is entitled to a new trial under Rule 59. The above analysis disposes of BART’s challenge to the district court’s conclusion that the jury’s verdict was not against the clear weight of the evidence. “[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court’s denial of a Rule 59 motion is virtually unassailable.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (cleaned up). “In such cases, we reverse . . . only where there is an absolute absence of evidence to support the jury’s verdict.” Id. (citation omitted). BART also argues that it is entitled to a new trial because counsel for the Six Former Employees violated the order in limine excluding “evidence of requests for religious exemptions from employees who are not [or are no longer] plaintiffs in this action.” The district court excluded this evidence under Rule 403 because the probative value was minimal and “introduction of this evidence will either unfairly prejudice BART or waste time and cause delay,” as it was clear that the evidence would be used “to support the inference that BART did not give genuine consideration to any of the exemption or accommodation decisions at issue.” 20 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. Though the district court did not view that evidence as unfairly prejudicial, it concluded that “BART cannot combat that inference absent significant delay and waste of trial time.” Plaintiffs’ counsel violated the order in limine three times during the second phase of trial: once in cross- examination of Rodney Maplestone, the head of BART’s Leave Management Team, and twice in closing argument rebuttal. BART’s counsel contemporaneously objected to each violation, and the district court sustained all three objections. After the second violation, the district court explained to the jury why the objection was being sustained; after the third, the district court instructed the jury to “disregard this argument.” No violations of the order occurred during the first phase of trial, when “undue hardship” was being adjudicated. A violation of an order in limine is only a basis for a mistrial when the violation “produced some effect on the jury’s verdict” or otherwise prejudiced the losing party. Black v. Shultz, 530 F.3d 702, 706 (8th Cir. 2008) (quoting Pullman v. Land O’Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001)); Lasar v. Ford Motor Co., 399 F.3d 1101, 1115 & n.13 (9th Cir. 2005); see also 28 U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”). And the district court did not abuse its discretion in concluding that the violations of the order in limine did not prejudice BART. Given that the first phase of trial had occurred, these violations could not have affected the jury’s determination of “undue hardship.” Nor did BART suffer  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 21 any apparent prejudice from the time wasted by these violations. And to the extent that these violations had the potential to inflame the passions of the jury, we must presume, absent a clear indication to the contrary, that the district court’s explanation and instruction to the jury cured the prejudicial effects of counsel’s improper comments. See United States v. Randall, 162 F.3d 557, 559 (9th Cir. 1998) (“Ordinarily, cautionary instructions or other prompt and effective actions by the trial court are sufficient to cure the effects of improper comments, because juries are presumed to follow such cautionary instructions.”). Accordingly, the district court did not abuse its discretion by denying a new trial. IV Because we affirm the jury’s verdict on the Six Former Employees’ Title VII and FEHA claims, we need not address the now-moot conditional cross-appeal of the order granting summary judgment for BART on their Free Exercise claim. That claim “ar[o]se from the same operative facts and s[ought] relief for the same harm” as their successful claims, and they may not recover any amount beyond what is necessary to compensate for the harm suffered. Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016); see also 21 Moore’s Federal Practice § 328.1.03 (3d ed. 2026) (“[A]n appellee who prevailed in the district court and received all the relief sought may not cross-appeal from the favorable judgment, even to secure review of unfavorable findings.”). And the parties do not dispute that if we affirm the jury’s verdict, any potential error the district court might have committed by granting summary judgment for BART on this issue would have been harmless error at best. 22 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. The only aspect of the cross-appeal ostensibly not moot is Rivera’s remedy of reinstatement. Under both Title VII and FEHA, “courts are vested with broad equitable discretion in fashioning and applying an appropriate remedy.” Dyer v. Workers’ Comp. Appeals Bd., 28 Cal. Rptr. 2d 30, 33 (Ct. App. 1994); Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976). Because Rivera failed to make this objection below, we review the district court’s remedial decision for plain error and will only grant relief “to prevent a miscarriage of justice.” C.B. v. City of Sonora, 769 F.3d 1005, 1019 (9th Cir. 2014) (en banc) (quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006)). It was not plain error for the district court to order front pay. At oral argument, Rivera’s counsel conceded that he elected front pay below, meaning that getting reinstatement as well without surrendering the money award would result in an impermissible double recovery. Rivera received his elected remedy, and the record does not plainly indicate that Rivera’s reinstatement would even be feasible. See Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir. 1999). None of the other Plaintiffs received reinstatement; all six each received a monetary award of over $1 million. It is not a miscarriage of justice for similarly situated litigants to be given a similar remedy. Cf. Walter v. United States, 969 F.2d 814, 817 (9th Cir. 1992) (“Fundamental fairness requires that like cases be treated alike.”). Accordingly, we affirm the district court’s exercise of remedial discretion in the narrow circumstances of this case.  LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. 23 V Title VII serves as a bulwark to protect the rights of conscience. A jury reasonably concluded that the Six Former Employees carried their burden under Title VII and FEHA, and that BART would not have suffered an undue hardship from accommodating those employees. We will not disturb that verdict. AFFIRMED. R. NELSON, Circuit Judge, concurring: The majority does not reach the free exercise cross appeal given our resolution for Appellees. Because this issue is recurring in our circuit and elsewhere, I explain why the district court’s analysis on the free exercise claims is troubling. The district court concluded that BART’s review process did not violate general applicability under Employment Division v. Smith, 494 U.S. 872 (1990), because the review process did not allow “unfettered discretion permitting discretionary treatment of religion discussed in Fulton, Sherbert, and Smith.” See generally Fulton v. City of Phila., 593 U.S. 522 (2021). But we expressly rejected the district court’s “unfettered discretion” test. See Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 687–88 (9th Cir. 2023) (en banc). And the Supreme Court may soon clarify this issue further. See St. Mary Cath. Par. v. Roy, No. 25-581, 2026 WL 1052111 (U.S. Apr. 20, 2026) (granting the petition for writ of certiorari). Still, the district court’s decision highlights that Smith and its progeny have resulted in a doctrinal hodgepodge. And lower courts—wrongly— 24 LEWIS-WILLIAMS V. SF BAY AREA RAPID TRANSIT DIST. find a neutral and generally applicable law without properly applying our precedent. The real problem is that Smith is demonstrably erroneous. Gamble v. United States, 587 U.S. 678, 710–11, 718 (2019) (Thomas, J., concurring) (“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”). While we as lower court judges are bound to follow Smith, we need not expand it. Cf. Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 954 (9th Cir. 2021) (R. Nelson, J., dissenting from the denial of rehearing en banc). Smith is inconsistent with history and tradition. The Free Exercise Clause represented a powerful promise in 1791: the federal government would not interfere with the exercise of Americans’ religious faith. See U.S. Const. amend. I. That promise was strengthened when “this nation, under God,” had “a new birth of Freedom” that transformed the Free Exercise Clause from a limited guarantee against the federal government into a vibrant privilege or immunity incorporated against the states. Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863); U.S. Const. amend. XIV, § 1, cl. 2 (“No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.”). Sadly, Smith shirked relevant history and tossed the fullness of the Constitution’s free-exercise protections to the wayside for its regime of neutral and general applicability. This constitutional guarantee should one day be vindicated, and Smith should be relegated to the annals of history alongside other demonstr