Peaceful American Constitutionalists (MemberPAC) is pleased to be able to draw on the most up-to-date thinking and writing on topics of greatest interest to our members. We just received a very insightful paper from Robert Capodilupo, a highly respected member of the Federalist Society and student body at Yale Law School. We are passing it on to you with the understanding that it is not a legal opinion and should not be relied on as a statement of current law.
Please watch for another post coming soon regarding two very current cases filed by Feds for Medical Freedom. Until the 5th Circuit Court of Appeals issues a final ruling, the Biden Administration has "issued guidance after the Federal employee vaccine mandate was enjoined, stating that the Federal Government would comply with the court order and would take no action to implement or enforce the vaccination requirement while it remains in force."
The Civil Rights Case Against Employer-Mandated Vaccines
by Robert Capodilupo
Robert Capodilupo is a J.D. Candidate at Yale Law School. He holds an M.Phil. in Economic & Social History from Magdalene College, Cambridge, and an A.B. magna cum laude in Government from Harvard College. He publishes a biweekly newsletter on issues of constitutional law and culture at https://silencedogood1776.substack.com/.
This analysis represents the academic opinion of the Author, who is not a licensed attorney, and does not constitute legal advice.
Although the number of COVID-19 cases, deaths, and hospitalizations is declining, the debate over vaccines will not go away. On March 30, President Biden proposed a new multibillion-dollar package to expand access to COVID-19 vaccines. This announcement came on the heels of the FDA’s recent authorization of a second booster dose for “or older people and certain immunocompromised individuals,” which President Biden received during a public press conference.
Despite its strong support for expanding vaccine coverage, the Biden Administration has thus far been unsuccessful in promulgating a vaccine mandate. In January, the Supreme Court struck down an administrative attempt to require all employees of firms employing more than 100 workers to be vaccinated in NFIB v. Department of Labor.
Crucially, the Court did not rule here that a vaccine mandate was categorically outside of the legitimate power of government. In fact, the Court has historically upheld the constitutionality of vaccine mandates at the state and local level as proper exercises of a state’s Tenth Amendment Police Power, and leading constitutional scholars such as Akhil Reed Amar have argued that passing federal legislation mandating vaccines is within Congress’s power to provide for national security under Article I of the Constitution. Thus, NFIB only stands for the rule that the Occupational Health & Safety Administration was not the proper vehicle for bringing forth such a mandate, as this action was outside the agency’s statutory authority.
Still, the Biden Administration has thus far taken no action to promulgate a similar rule through another agency. And given the longstanding gridlock of Congress, it is extremely unlikely that a national mandate will ever become law through legislation.
The Rise of Private Vaccine Mandates
To compensate for the government’s inability to mandate vaccines, many private employers have taken it upon themselves to ensure vaccine compliance. Many of the nation’s largest companies, including Tyson Foods, United Airlines, and Citigroup, have not only made vaccination a requirement for returning to in-person work, but have also threatened that their employees may be “disciplined or terminated” because they are not vaccinated.
In our public discourse, the most common arguments of both the proponents and opponents of private mandates are lacking legal rigor.
All one needs to do is scroll on to Twitter for a few minutes to find some uninformed legal arguments suggesting that private vaccine mandates violate HIPAA or the ADA, or are an otherwise illegal exercise of “corporate tyranny.” But, of course, HIPAA does not apply to private businesses and the Constitution does not restrain private businesses from infringing upon individual liberty in the same way that it does to the government. And while the ADA does allow for disability-related accommodations for workers who would not “pose a ‘direct threat’ to the health or safety of the employee or others in the workplace,” this carve-out is only applicable to a “small minority of persons.”
Proponents of private mandates tend to couch their arguments in themes of economic liberty. As Jeffrey Miron and Erin Partin argue, “[i]f a restaurant or an airline does not want to expose its employees or customers to an infected patron, or if they want to require vaccination before employees can return to work in person, they should be free to do so.” But this is a normative argument, not a legal one—while advocates of this view may desire a system of unbridled liberty and choice in markets, this view does not reflect the practical realities of our system. Although the United States does have a relatively high climate of free enterprise, private businesses do not in fact have a blank check to do whatever they want, and governments at both the state and federal levels widely regulate business activities.
The most substantial law governing the employment sector is the Civil Rights Act of 1964, and specifically, its Title VII. Under Title VII, it is illegal for businesses with fifteen or more employees to discriminate on the basis of their “race, color, religion, sex, or national origin.”
Based on the plain meaning of this law, it would seem that Title VII can offer little protection against employer-mandated vaccines. However, based on recent developments in the interpretation of this law, I argue that Title VII now commands exemptions from employer-mandated vaccines for all similarly situated employers whose lack of vaccination would not provide an undue hardship on the business, as refusal to do so would represent an act of illegal religious discrimination.
The Bostock Test for Evaluating Discrimination under Title VII
To understand this “civil rights” argument against private mandates, it is necessary to first explicate the current state of Title VII doctrine. Stating a claim of discrimination under Title VII requires an aggrieved party to show “treatment of a person in a manner which but for that person’s [possession of a protected characteristic] would be different.” Following this rule, the Supreme Court widely expanded Title VII protections—and how they are established—in a 2020 case called Bostock v. Clayton County.
In Bostock, the Supreme Court was tasked with deciding whether “discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of . . . sex’” under Title VII. Facially, sexual orientation is not an enumerated protected characteristic of Title VII’s text. However, Justice Gorsuch, writing for the Court, reasoned that “discrimination based on homosexuality . . . necessarily entails discrimination based on sex.”
To illustrate the “comparative” test it employed to arrive at this perhaps counterintuitive conclusion that discrimination on the basis of sex is discrimination on this basis of sexual orientation, the Court offered the following hypothetical:
[An] employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy [to discriminate based on sexual orientation] works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. . . . To achieve that purpose the employer must . . . intentionally treat an employee worse based in part on that individual’s sex.
Discrimination on the basis of sexual orientation, the Court reasoned, is necessarily sex discrimination because had the hypothetical employee been a woman, she would be discriminated against, but had he been a man, he would not have. Therefore, sex is a “but-for cause” for discrimination on the basis of sexual orientation.
In essence, the Bostock Court held that employers may not treat “individual” employees worse than any other employee based on the presence or absence of a protected characteristic. “An individual employee’s sex homosexuality or transgender status,” wrote Justice Gorsuch “is not relevant to the selection, evaluation, or compensation of employees . . . because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual” on the basis of a protected characteristic.
The Implications of Bostock on Private Vaccine Mandates
With this understanding of the relevant doctrine, we can now apply this framework to the issue of employer-mandated vaccines. Although the Bostock Court ostensibly limited its ruling to cases of discrimination against homosexual and transgender people in employment, its logic can and has been extended to other contexts of antidiscrimination law.
It is not obvious, then, why Bostock’s comparative test should not be extended to instances of discrimination on the basis of religion—which, like that on the basis of sex, is made illegal by Title VII. As Vivek Ramaswamy argues in his book Woke Inc.,
[After Bostock, if a] company fires Y for saying Z and wouldn’t fire them if they were religious and said the same thing means Y’s lack of religion is a but-for cause of their firing, [this is religious discrimination] using Bostock’s method of recognizing discrimination.
In other words, because the Civil Rights Act of 1964 says [an employer] can’t fire a Muslim employee for asserting that transgender women are actually men because the Quran says so, it must also say that [the employer] can’t fire [a non-religious person] for asserting the same thing.
The same argument can be made for religious exemptions to employer-mandated vaccines. Under current doctrine, “[e]mployers must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents [him or her] from receiving the vaccination – unless it would pose an undue hardship under Title VII. To prove undue hardship, [employers] must show that the proposed accommodation would cause more than a minimal cost or burden on the operations of [the] business.”
Imagine there are two workers at a firm, one of whom is a devout Catholic and the other of whom is an Atheist, who are otherwise equal in terms of the minimal burden that each would impose on the business. Because some COVID vaccines are “produced using a cell line derived from an aborted fetus, the Catholic employee could conceivably argue that being forced to take such a vaccine violates his sincerely held beliefs. Since the lack of vaccination of this hypothetical employee imposes nothing more than a minimal hardship on the firm, he is legally entitled to an accommodation under Title VII.
The Atheist employee, who cannot make a direct argument appealing to the teachings of faith to receive an exemption, may still be entitled to relief under Bostock’s reasoning. That is, by granting an exemption to the Catholic employee but not the Atheist employee, an employer discriminates against the latter on the basis of religion because but-for him not having the right religious beliefs, he would be able to get an exemption. Just as it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” so too is it impossible to discriminate against a person for having the “wrong” religion without discriminating against that individual based on the protected characteristic of religion.
The strongest counterargument to this claim likely comes from the Equal Opportunity Employment Commission’s (EEOC) non-binding guidance on COVID vaccine exemptions, which states that employers may consider “the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer” when determining whether vaccine exemptions pose an undue hardship. Under the EEOC’s logic, the fact that many employees are seeking exemptions may increase the overall burden imposed on the employer, thus forcing them to more strictly discern when to grant vaccine exemptions. Perhaps, then, employers will be incentivized to grant no accommodations at all.
But under Bostock, this analysis is irrelevant. As the Court noted, “the law’s focus on individuals rather than groups.” Bostock implied employer should be liable under Title VII for treating an individual employee worse than another because of religion.
A categorical ban on accommodations resultant from a cumulative analysis of burdens violates both the letter of Title VII and the Bostock Court’s command that employees must be treated as individuals. Further, if an employer is to grant exemptions to religious employees, he must do so for all similarly situated employees because failing to do so would be illegal discrimination on the basis of religion. Therefore, the logic of Bostock likely poses a viable legal avenue for expanding exemptions from employer-mandated vaccines under Title VII.
Given recent developments in civil-rights jurisprudence, the number of employees who may be eligible to receive exemptions from employer-mandated vaccines may be much higher than we think. Under Title VII, employees are entitled to such exemptions if taking the vaccine violates their religious beliefs, so long as this exemption poses only a minimal burden on their employers. Following the logic of Bostock, this eligibility for exemptions should be extended to all similarly situated employees—anything else would constitute illegal discrimination on the basis of religion.
This is not to say that I believe that Bostock was correctly decided. As Justice Kavanaugh argued in his dissent, the Court’s decision in Bostock represented “a novel form of living literalism [employed] to rewrite ordinary meaning and remake American law” in a manner contradictory to the Court’s constitutionally defined role to “interpret and follow the law as written. The Court’s effort to “‘update’ old statutes so that they better reflect the current values of society” may lead to a plethora of unintended consequences—and the issue of employer-mandated vaccines is no exception.
But Bostock remains the law of the land. As such, its reasoning can logically be extended to the analogous issue of religious discrimination and suggests that Title VII protects an employee from being forced to take COVID vaccines when that individual’s choice poses only a minimal burden on the firm—regardless of his religion.