Yesterday, the Sixth Circuit unanimously affirmed the Civil Rule 12(b)(6) dismissal of a Free Exercise constitutional claim brought by former employees against a government contractor based on the COVID vaccine mandate. Ciraci v. J.M. Smucker Co., No. 22-3462 (6th Cir. 3-14-23). The plaintiffs were apparently terminated after their request for a religious exemption from the COVID vaccination mandate imposed on federal contractors was denied by the defendant employer, a federal contractor. “So long as a private company’s actions turn on compliance with a state or federal law, that does not by itself make the company a state actor.” In short, an employer does “not become a state actor merely by complying with a generally applicable law.” Because constitutional claims can only be brought against state actors and not private entities, the claims were properly dismissed.
According to the Court’s opinion, after President Biden ordered
employees of federal contractors to be vaccinated, the employer requested – but
did not require – its employees to get vaccinated. A month later, it required its employees to be
vaccinated pursuant to the Executive Order, subject to religious and health
accommodations. The plaintiffs sought
religious accommodations and were denied.
The opinion makes no mention of other litigation stays on the Executive Order
by federal courts or whether the plaintiffs were terminated (other than to note
that they all sought reinstatement through the lawsuit). Instead of filing suit against President
Biden or the OFCCP, the employees sued their employer under the U.S.
Constitution, not Title VII.
Constitutional claims only apply to government
entities. The Court had no difficulty finding
that the company failed to become a government actor simply by selling products
to the federal government.
[It] does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That [it] acted in compliance with a federal law and that [it] served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.
Constitutions simultaneously empower and constrain. At the same time that they authorize various branches of government to exercise sovereign power, they limit that power in lots of ways, including through election requirements, tenure provisions, process-based requirements for making laws, and, most relevant for today, explicit constraints on the exercise of power. The first eight provisions of the Bill of Rights offer the most prominent example of constraints on government. Whether it is the Bill of Rights in general or the First Amendment in particular, these constraints typically protect citizens from the government, not from each other. . . . . It is the rare federal constitutional guarantee—the prohibition on involuntary servitude counts as a glaring exception, see U.S. Const. amend. XIII—that regulates solely private conduct.
. . .
By way of contrast, many federal statutes regulate private conduct and some even protect certain values that the Free Exercise Clause protects. The claimants, for example, could have separately filed a claim under Title VII of the 1964 Civil Rights Act, . . . . It bars private employers from discriminating against employees based on their faith, among other protected categories. 42 U.S.C. § 2000e-2(a). The claimants, notably, filed complaints with the EEOC under Title VII. At the same time, the claimants could have sued the federal government, which created the vaccine mandate for federal contractors. But they did not, requiring us to determine whether Smucker’s counts as a government actor.
The Court discussed a number of factors to consider in
whether a private company may be considered to be a government actor subject to
constitutional limitations. First, is “the
specific conduct of which [a] plaintiff complains” is “fairly attributable” to
the government”? Second, is the defendant
entity’s conduct “entwined with” government decisions or fairly attributable to
the government based on a close “nexus” between the state and the challenged
conduct? Third, is the defendant company
involved with a “traditionally exclusive government function?” Finally, did the
government compel the defendant company’s actions? Compliance with a state or
federal law does not, by itself, convert a private entity into a government or
state actor.
Clearly, the defendant was not involved in a traditionally exclusive
government function, like conducting elections.
“We have never relied on the government to make jelly, peanut butter,
and other products in the Smucker’s lineup. . . . Making jam simply is not a
government function, whether by tradition or by the most up-to-date notions of
what our governments should do.”
That Smucker’s carried out the government’s vaccine mandate in the course of making jam does not change anything. In the first place, the inquiry focuses on the entity’s underlying service, not the government’s regulatory mandate. Otherwise, the inquiry would collapse into a public function each time a regulation covered the topic. In the second place, claimants cannot satisfy even this friendly re-framing of the issue. A vaccine mandate does not count as “a public function traditionally handled just by the State.” . . . .It is hardly unheard of for private companies to make vaccination a condition of employment.
The Court also rejected any argument that the government and
defendant employer had become so entwined as to form collective state
action.
Entwinement may arise when a private entity partners with, directs, or is controlled by government officials. Consider some examples. A merchant becomes entwined with the government when it directs a county sheriff to attach a customer’s property. . . . . An athletic association becomes entwined with the government when public schools govern, operate, and fund it. . . . . And a private store becomes entwined with the government when it conspires with government officials to segregate its facilities or acts in accordance with unofficial, unlawful, and state-enforced customs of segregation. . . . .
Again, nothing of the sort happened here. Smucker’s has not partnered, conspired, or entered into a “joint venture[]” with federal officials. . . . . It did not deny the claimants’ request for an exemption using federal officials’ assistance. . . . . Nor has it connected itself to joint action with the government in some other cognizable way. Yes, it has contracted with the federal government. But federal contracts by themselves do not create the requisite entwinement.
The Court also rejected the argument that the company had
been compelled to deny the plaintiffs’ religious exemption requests.
In this case, the federal government never required [the employer] to vaccinate the claimants, for the Executive Order did not tell [it] to deny exemptions to anyone. It told [it] to grant religious exemptions to those legally entitled to them, and let [it] decide on its own who qualified. See Guidance at 10. The claimants contend that [it] has exercised its discretion under the Executive Order stingily, not that [it] has been dragooned by the government into denying an exemption.
Constitutional claims may only be brought against government
entities or actors (like officials). “When a private company complies with
federal law, that does not by itself make the company a government actor. . . .
. Else, every regulated private company
would be a public entity, . . . .”
“Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities.” . . . . To be regulated does not make one a regulator. To sell to the government does not make one the government. Not even “extensive regulation” of a private company makes it a “state actor” by itself.
. . . .
. . . But compliance with federal law, without more, does not make private firms state actors. Just as Smucker’s acts privately when it requires its suppliers to sell it fit rather than unfit berries, see 21 U.S.C. § 342(a)(3), so too when it requires employees to take vaccines that make them fit for work.
In addition, the plaintiffs could not seek relief with a
§1983 claim, which addresses constitutional violations of those acting under
color of “state” law. Here, it was as
federal rule, not an Ohio rule, which was at issue. Further, they were not suing any federal
official for violating the U.S. constitution.
The court declined to address whether the plaintiffs were entitled to
sue under the constitution for affirmative relief, beyond a mere injunction.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
