Today, oral arguments in two cases are scheduled at the SCOTUS to address whether the federal vaccination mandate is a is a constitutional exercise of executive power as the pandemic rages around us. At issue in one case is whether the US Labor Department can legally impose a "vaccine-or-test" mandate to large employers [over 100 employees]; the issue in the second case is whether vaccines can be mandated for health care workers at facilities that receive federal funds. 

President Biden's administration implemented the "vaccinate-or-test" mandate through the Occupational Safety and Health Administration [OSHA]. Several challenges to the OSHA requirement arose immediately throughout the country; the dispute distilled into an appealed case right here in the Sixth Circuit. The Sixth Circuit panel assigned to the case reinstated the federal mandate in this opinion. 

The myriad parties to the suit that represented employers were granted certiorari; SCOTUS placed the case on its "fast track" merits docket. 

The federal government's argument was crafted during a sustained world-wide surge of the fast-spreading Omicron variant; over 800,000 people have died in the United States from the virus. This compares to the roughly 650,000 deaths from so-called "Spanish Flu" just over a Century ago. 

Amy Howe of SCOTUSBlog summarizes the legal position of the Solicitor General:

OSHA simply exercised the power that Congress gave it under the Occupational Safety and Health Act of 1970, which directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.” Emergency rules can go into effect immediately, without the notice-and-comment procedures normally required for agency rulemaking. In this case, [the Solicitor General asserts] OSHA concluded that the COVID-19 virus is “both a physically harmful agent” and a “new hazard,” and that unvaccinated employees who are exposed to the virus at work face a “grave danger.” 

Twenty seven states, led by Ohio, beg to differ. The states argue that the pandemic is being used as a "pretext" simply to get more folks vaccinated; the states assert hat not all hazards -like COVID- should be considered work-related for purposes of the "grave danger" emergency OSHA regulations. 

Another challenge to the OSHA emergency regulations comes from small business trade groups. They argue that forcing employers to implement a "vaccinate-or-test" policy foists unfair expenses on the company or their customers; the measures also disrupt an already-disrupted work force when workers [purportedly] quit in droves rather than comply with their employer's new COVID policy. 

Ms. Howe's blog post summarizes the federal government's response to the trade group and states' arguments:

[A] physically harmful agent, exposure to it in the workplace presents a grave danger to employees, and the [mandate] is necessary to protect employees from that danger.” Moreover, the administration adds, Congress not only envisioned that OSHA might require immunizations to protect workers, but in the American Rescue Plan of 2021, it also instructed OSHA to use its authority to protect workers from COVID-19 – and even appropriated funds for it to do so.

For their part, the health care workers' appeal focuses the Justices on the unprecedented "one-size-fits-all" nature of the OSHA mandates; they assert that the powers wielded by the Health and Human Services bureaucracy are too expansive without a clear statement from Congress. The Solicitor General, on the other hand, contends that Congress has already provided this power to OSHA and to HHS.

We here at Clarkston Legal will track this interesting case and let our readers know how SCOTUS decides the matter. These consolidated cases remind us of the Obamacare battles that made repeated trips up to the SCOTUS. 

Stay tuned.  

Post #631

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Jack Phillips courtesy of SCOTUSblog

The first week in December, the SCOTUS will hear argument in a case from Colorado where that state's civil rights commission cited a bakery for not producing a wedding cake for a same-sex couple. Deeply-held religious beliefs and gay rights are on schedule for a high-speed collision in this interesting and much-watched case.

Very similar to the apple orchard case here in Michigan, this Colorado case will test the limits of civil right for gay couples. Should private businesses be compelled -through a state's "public accommodation" statute- to provide services to gay couples when doing so would offend the religious beliefs of the business owner?

Who better to break it all down than Amy Howe of SCOTUSblog in her always-excellent "In Plain English" feature:

Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.

Phillips' two attempts to dismiss the Colorado Civil Rights Commission's complaint failed and the commission's ruling against the business and its owner was upheld by the Colorado Court of Appeals. SCOTUS granted certiorari when the Colorado Supreme Court took a pass on the case.

Over 50 amicus briefs have been filed in the case, the United States Department of Justice and the U. S. Conference of Catholic Bishops, among many others. An amicus brief is filed by leave of the Supreme Court, allowing groups and organizations that have an interest in the outcome of a case to supply a brief for the justices to consider.

Phillips, the cake artist, told the NYT last month, "it's more than just a cake, it's a piece of art in so many ways." Phillips says the cake he was asked to create was an important symbol for use in a wedding that he does not condone as it is not a wedding between a man and a woman.

His potential customers disagreed; Charlie Craig told the Times, "we asked for a cake, we didn't ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are." Colorado issued two court orders that found the baker's conduct violated the state's public accommodation law.

In his brief filed with the SCOTUS, Phillips asserts that the Colorado law prevents him from earning a living through the creation of expressive pieces of art and prevents him from living out his religious beliefs freely in the public square. Phillips asserts that his First Amendment right to free speech includes visual expression. Accordingly, he asserts that Colorado's public accommodation law must subjected to "strict scrutiny"; a scrutiny that will demonstrate the state law unconstitutional.

For their part, the civil rights commission and the gay couple assert that the state law passes even the strictest of scrutiny because it regulates conduct only; not speech.

This case has had a tortured journey to certiorari; it was considered at no less than 15 case conferences before getting the requisite 4 votes. Legal scholars were not hopeful the case would be accepted in light of a similar case -involving wedding photographers- getting rejected by the High Court in 2014.

Oral arguments in December will provide an excellent window into the Court's internal debate. The decision -no doubt- will be one of the last to be released next June.

Stay tuned as this case will really have a significant impact on how business gets done in the town square.

Post #607
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Victorious Samantha Elauf

The SCOTUS issued another opinion, this time from Justice Antonin Scalia, strengthening religious rights in the workplace. In EEOC v Abercrombie & Fitch, the High Court reversed a 10th Circuit Court of Appeals' ruling that favored an employer's right to uphold a corporate dress code; in this case, it was Abercrombie's "no head wear" policy.

The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment. Samantha Elauf, a Muslim teenager back in 2008, applied to an A&F store in Tulsa, Oklahoma.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or head wear of any kind.  At the SCOTUS, Abercrombie argued that no religious discrimination occurred because it had no "actual knowledge" that Ms. Elauf wore her hijab for religious reasons; she was silent on the subject during her interview.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Justice Scalia's decision was aptly summarized in Amy Howe's "Plain English" post for SCOTUSBlog:

The Court reasoned that the federal law at issue in this case, Title VII of the Civil Rights Act of 1964, bars employers from refusing to hire someone “because of” her religion, which includes religious observances. And in the context of this law, the Court continued, the phrase “because of” requires only that “an individual’s actual religious practice . . . not be a motivating factor” behind the failure to hire her. There is no requirement that the employer actually know that there could be “a conflict between an applicant’s religious practice and a work rule.” Indeed, the Court emphasizes, although other antidiscrimination statutes do explicitly require knowledge, Title VII does not. Therefore, reading the statute to include a knowledge requirement would “ask us to add words to the law to produce what is thought to be a desirable result.” And that, the Court made clear, “is Congress’s province.” 

Similarly, Abercrombie's argument-in-the-alternative that its dress code applied to all employees was rejected by the SCOTUS.  The Court's ruling states that the civil rights act does not require employers to be neutral but rather, that they provide an applicant's or employee's religious practices "favored treatment."

In the workplace, this means that employment practices that are otherwise neutral must now "give way to a need for an accommodation."  Business groups have already taken issue with the ruling on the basis that it puts employers behind the eight ball with a confusing standard that forces the employer to guess at an applicant's religious practices.  Also, business groups fear the opinion opens the door to litigation, making employers vulnerable within the context of the "favored treatment" workplace.

We here at the Law Blogger wonder which religious practices are going to surface in the inevitable cases spawned by this decision. No doubt, there will be some interesting ones, you just wait and see...

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