DV Journal

Even though the COVID-19 pandemic is over, a case stemming from it is pending in the Third Circuit Court of Appeals.

At issue is how far the government can go in restricting employees’ First Amendment exercise of their rights to practice their religion. Previously, a federal judge sided in favor of Philadelphia District Attorney Larry Krasner and the city in a religious discrimination case brought by Rachel Spivack.

In April 2022, Spivack, now an assistant district attorney in Luzerne County, was fired from her job as a Philadelphia assistant district attorney after she requested a religious exemption from getting the COVID vaccination. While Spivack asked for an exemption because of her Orthodox Jewish faith, others who were union members were not required to get vaccinated because their contract precluded the mandate, a court brief stated.

“Union membership does not guarantee COVID-19 immunity,” the brief noted.

“Religious liberty should not depend on union membership,” said Lea Patterson, senior counsel for First Liberty Institute, who argued the case. “The District Attorney disregarded the law by treating those like Rachel who requested religious accommodation less favorably than those who requested accommodation for other reasons. As the Supreme Court has already made clear, the government is not free to disregard the First Amendment’s protection of religious liberty in times of crisis.”

After waiting nearly seven months for a response to her request, it was denied, and she was fired. At the same time, 10 unionized employees and one medically exempt non-unionized employee were permitted to continue working without being vaccinated.

“Spivack’s request was denied when Krasner decided to summarily deny all religious exemption or accommodation requests,” the brief said. “Krasner terminated Spivack’s employment as a result, violating the Free Exercise Clause.”

“Krasner denied all religious exemption or accommodation requests because he believed he was not legally required to grant them,” the brief said.

Despite documentation from her rabbi, Krasner found her request to be “not credible,” the brief said.

“The (District Attorney’s Office) DAO Mandate is neither neutral nor generally applicable for four independent reasons: 1) Krasner possessed absolute discretion in granting exemptions to the Mandate; 2) the Mandate did not apply to unionized DAO employees; 3) Krasner granted a medical exemption to the Mandate; 4) Krasner’s decision to deny all religious exemption or accommodation requests derives from religious hostility. Any one of these is sufficient to trigger strict scrutiny.”

Krasner did not respond to a request for comment. However, in his response to Spivack’s appeal, his lawyers said Krasner changed his vaccine policy as medical advice changed and relied on legal counsel and the 1905 case Jacobson v. Massachusetts, which required smallpox vaccinations.

Krasner argued, “The Court should affirm the District Court’s decision granting summary judgment for District Attorney Krasner on Ms. Spivack’s First Amendment claim because there is no genuine issue of material fact that the DAO vaccine mandate is a neutral and generally applicable policy that satisfies rational basis review.”

And “it is also undisputed that the DAO experienced multiple, disruptive COVID-19 outbreaks throughout the pandemic..(describing COVID-19 outbreaks in the municipal court and trial units). In these circumstances, District Attorney Krasner reasonably concluded, based on recommendations of the CDC and the City Health Commissioner, that vaccination is the most effective and least restrictive measure available in light of the medical data and the DAO’s limited resources,” Krasner argued.

Spivack is seeking damages including back pay and attorneys fees in an amount that would be determined by the court, Patterson said.

First Liberty Institute is a non-profit public interest law firm and the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.

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A favorite sport in the hours and days after the Supreme Court hears arguments in a case is guessing how the justices will rule. It can be a humbling exercise.

Yet, in response to recent oral arguments in Groff v. DeJoy, one thing may be certain: The court will address and adjust a decades-old decision from a case that has thwarted religious liberty protections for American employees ever since.  The question is how far the court might go in restoring religious liberty to the workplace.

Gerald Groff is a former postal employee from rural Pennsylvania who joined the U.S. Postal Service because it fit his desire to have a career that allowed him to not work on Sundays. When he joined the USPS, it didn’t deliver on Sundays. The job seemed a perfect fit.

That was until Amazon purchased a contract requiring the USPS to deliver packages on Sundays.

At first, Groff’s supervisor accommodated him. Groff was willing to work extra shifts and holidays to help out his fellow employees, who then covered for him on Sundays when, for religious reasons, he could not work. But, in a sudden shift, USPS officials ended his accommodation. He transferred to a different post office that was not required to make deliveries on Sunday — losing all his seniority in the process — but that soon ended, and USPS began increasing pressure on Groff to abandon his religious convictions.

USPS set out to make an example of Groff.  He faced eight disciplinary hearings, received two separate suspensions, and a warning letter went to his employee file, all while supervisors and co-workers mocked his religious convictions. After two years of relentless hostility, Groff felt he had no choice but to resign.

No American should be forced to choose between their faith and their job.

So, Groff filed a lawsuit, with his case eventually making it to the Supreme Court, where in mid-April the justices heard vigorous oral arguments for two hours.

At issue is whether the court’s 1977 decision in Trans World Airlines v. Hardison correctly defines “undue hardship” under Title VII of the Civil Rights Act. Will it continue to excuse employers from accommodating religious employees if doing so means more than a “de minimis,” or minimal, burden on the employer? Or will the court extend similar protections offered to disabled employees to the nation’s religious employees?

Groff v. DeJoy provides an opportunity for the court to restore the meaning Congress intended in Title VII’s protections for religious employees before lower courts watered it down.

It seemed clear during oral argument that a majority of the justices seem willing to jettison the “de minimis” holding of Hardison. Justice Neil Gorsuch stated, “I think there’s common ground too that de minimis can’t be the test, in isolation, at least, because Congress doesn’t pass civil rights legislation to have de minimis effect. Right?”

Gorsuch echoes the words of Justice Thurgood Marshall, who, in 1977, dissented in Hardison by saying, “An employer, the court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith.”

The question remaining for the justices is whether the court will refuse to grant even the most minor privileges to religious observers at work, or will it take a more fulsome view of our nation’s commitment to religious liberty? We will know by the end of June.

Indeed, whatever the court chooses to replace the ill-fated “de minimis” test will benefit from returning our national commitment to err on the side of what Marshall said was one of America’s “pillars of strength — our hospitality to religious diversity.”

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