Posted on by justlawfulblog

Faith in the Workplace:  Supreme Court to Consider Standard Employer Must Meet Concerning Employee Requests for Religious Accommodation, as Well as Whether Burdens on Co-Workers May Meet that Standard 

Groff v. DeJoy, No. 22-174.  Certiorari granted January 12, 2023.

Forty five years ago, the Supreme Court opined that an employer need not accommodate and employee’s religious practices where doing so would involve more than a de minimus cost to the employer, as so doing would meet the “undue hardship standard provided in Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. Sections 2000d-2(a)(1),(2).    Trans World Airlines v. Hardison, 432 U.S. 63 (1977).  

The Court will now consider whether the Trans World Airlines v. Hardison standard is met where hardship falls on a claimant’s co-workers rather than the employer and the employer’s business. 

The breadth of prohibitions on discrimination because of religion contemplated by Title VII of the Civil Rights Act is not inconsiderable, as the statute provides that “all aspects of religious observances and practices, as well as belief…” must be accommodated unless to do so would impose an undue hardship on an employers’ business.

Petitioner began working for the United States Postal Service i(USPS) in 2012, and resigned in 2019.  Plaintiff observes a Christian Sabbath on Sundays, which precludes work. 

A contractual arrangement for weekend package delivery between the USPS and Amazon.com, Inc. created an increased demand for weekend postal workers.

Groff was informed that he would have to work on Sundays or lose his job.  Groff refused but offered to work extra on other days.  The employer agreed to elicit volunteers to work Sundays instead of Groff.  The arrangement worked imperfectly for two years.

USPS declined to continue to accommodate Groff during non-peak shifts on Sundays, applying progressive discipline when Groff refused to work.  During peak periods, Groff’s accommodation created additional work for other employees.

With some disagreement, the Third Circuit Court of Appeals concluded that asking the USPS to exempt Groff from Sunday work would create an undue burden on the USPS.  

Advocates for Groff argue that the “more than de minimis” TWA v. Hardison standard weakens prohibitions against religious discrimination, effectively nullifying them and placing religious exemptions on a different footing from other other rights protected by Title VII.

The United States Postmaster General opposes restructuring of religious accommodations through this case, arguing that Title VII is silent respecting “undue hardship,” making the TWA v. Hardison decision sound.

The Postmaster General points to financial necessity as the impetus for agreeing to delivery service for Amazon.  Other employees were directly burdened when they had to work when Groff did not.  

The Postmaster General has submitted that the “undue burden” standard would be met under any circumstances in this case, particularly where acceding to Groff’s demands would violate both the USPS’s agreements with Amazon.com and with the postal workers’ union.  

No briefing order has been issued nor has a date for oral argument been set. 

Groff v. DeJoy, Petition for Certiorari

Groff v. DeJoy Opposition to Certiorari

Groff v. DeJoy, Reply of Petitioner

Posted on by justlawfulblog

Supreme Court Will Review the Nature of True Threats and First Amendment Protections 

Counterman v. Colorado,  No. 22-138.  Certiorari granted January 13, 2023.

The Supreme Court has decided to review a question left unanswered in Elonis v. United States, No. 13-983, 575 U.S. 723 (2015).  If “true threats” are not protected by the First Amendment, then what, if any, state of mind must be present to remove such protections and thereby permit prosecution for stalking or other speech-related matters. 

According to petitioner Counterman, confusion surrounding the standard that existed pre-Elonis has, consistently with a prediction from Justice Alito, exploded post-Elonis, leaving nine federal circuits and eighteen states/jurisdictions requiring objectivity based on what a reasonable hearer would think of the words, with two federal circuits and four states demanding proof that the speaker in question intended a threat.  Another state requires knowledge and two require recklessness.  Nine circuits include states applying conflicting standards.

Colorado illustrates the state-federal conflict in this case. Petitioner was convicted in state court only with reference to objective measures.  Had he been tried in federal court, Counterman’s state of mind – whether he intended a treat – would have been critical to conviction.

The abandonment of any state of mind requirement for speech crimes would, petitioner argues, abandon the First Amendment.  

Petitioner was arrested and charged with stalking after Facebook exchanges caused discomfort in the state’s witness, and he was convicted without reference to whether he was aware that he knew he would cause distress, only that he knew he was sending a message.

Counterman has sought review not only because of the contortions and conflicts among state and federal courts but also because criminal law, which seeks to curb malevolent will, stands in contrast to First Amendment protections, which assure liberty to speak in many ways including unpleasant ways, without fear of criminal prosecution.  

Employing an objective standard – what a hearer, not a speaker, would think – reduces crime to negligence and conflicts with the First amendment as the low standard could criminalize otherwise innocuous, even if offensive, speech.  

The law ought rarely prosecute ‘accidental’ crimes and never countenance ‘accidental’ speech crimes.  The latter from the outset would chill otherwise permissible speech.  A state of mind requirement permits a speaker to speak without fear that his words will result in arrest and confinement.

Culpability in the absence of context, and likely imposed during a cold reading, cannot be sustained where the imposition of criminal liability would erode the speech protections of ordinary citizens. 

Colorado has strenuously object to granting certiorari, but its arguments have not persuaded the Court at this juncture.  Colorado points to Counterman’s admission that his conduct violated the stalking statute.  The presence of a speech component in a conduct-focused crime does not permit a clear constitutional analysis.

Colorado has argued that its view comports with Supreme Court precedent which permits conviction on the basis of conduct.

The Colorado court’s application of a context driven, multi factor objective analysis of petitioners’ statements permits assessment of stalking while leaving protected speech undisturbed, the state has argued. 

Colorado has argued that First Amendment protections do not extend only to speakers who would be robbed of speech protections in the absence of requiring evidence of an accused subjective mental state.  Colorado has argued that contextual analysis protects speech while permitting an objective view of threatening acts and speech.  

No briefing schedule has been issued and no oral argument date set.  

Counterman Petition for Certiorari

Counterman Brief in Opposition

Counterman Reply Brief for Petitioner

Amicus Briefs

Counterman Amicus Cato Institute

Counterman Amicus Rutherford Institute

Posted on by justlawfulblog

Dismissal of Claim Arising from Allegedly Racially Based Student Harassment Affirmed by Fifth Circuit

B.W., a minor, by next friends v. Austin Independent School District, No. 22-50158 (5th Cir.) January 9, 2023.

Plaintiff sued the school district for race based discrimination and retaliation under Title VI of the Civil Rights Act of 1964, as amended, asserting that the school district was indifferent to mistreatment suffered when plaintiff appeared in school wearing clothing or carrying signs identified with conservative figures.  Incidents included a locker room encounter in which students from one ethnic group taunted students from another ethnic group, including plaintiff, and an individual student’s lunchroom threat to kill all who support those identified with plaintiff’s clothes.

 

Plaintiff withdrew from school and initiated claims under 42 U.S.C. Section 1983 premised on the school district’s alleged violations of the First and Fourteenth Amendments, Title Vi, and Texas law.

 

Plaintiff alleged that with knowledge of the harassment plaintiff was suffering, the school district acted with deliberate indifference to his rights, and failed to provide him with a safe environment.

 

The Fifth Circuit affirmed dismissal premised on insufficient evidence, as there were only infrequent race based remarks which were not seen as sufficient to support a Title VI claim.  Title VI concerns only intentional discrimination which can be found if there is deliberate indifference to known harassment.  No such evidence existed on the plaintiff’s record, the court concluded, as plaintiff was tainted for ideological, not racial views.  In particular, no inference could be drawn by identifying the plaintiff’s race with that of a conservative political party, as no evidence indicated any race is precluded from participating in the conservative group.

 

The Fifth Circuit panel noted that plaintiff failed to develop any argument that the school district could be liable for deliberate indifference to student on student harassment, and therefore that this otherwise potentially compelling argument would not be addressed. Slip. op. P. 14, n.1.

 

The plaintiff’s retaliation claim was properly dismissed, as the complaint did not reveal any action taken because plaintiff opposed any unlawful practice or in response to any protected activity in reporting harassment.

 

The Fifth Circuit observed that nothing in the opinion indicates that the appellate court has looked away from the bullying plaintiff described, only that the law cited “does not support a claim for bullying generally.”  Slip. op. At 16.  


B.W. v. Austin Independent School District, No. 22-50158.0 (5th Cri.) January 9, 2023

Posted on by justlawfulblog

First Amendment Protection Not Lost in Michigan “Hate Speech” Case, Michigan Appellate Court Opines

CNN v. SEB, No. 359007 (Mich. App.)  January 12, 2023.  

Michigan’s Court of Appeals has vacated a personal protection order seen to have been supported by “hate speech.”

The parties are embattled neighbors who routinely feud over a shared driveway.  One such ruckus included a racial taunt between the parties referring to the race of a neighbor who was an observer and a stranger to the fight.  

The Michigan Court of Appeals has held that notwithstanding the distasteful remark, no threat was present which  would exempt the speaker from First Amendment protections, and as such, it would not support the issuance of a personal protective order.  

CNN V SEB Michigan Court of Appeals No. 359007 Opinion January 11, 2023

 

Posted on by justlawfulblog

Nice Would Be Nice, But Vulgarity Does Not Support Criminal Charge, Pennsylvania Trial Court Concludes

Commonwealth v. Muhammad, No. 690 MDA 2022 (Pa. Sup. Ct.)  January 11, 2023.

Muhammad was convicted of disorderly conduct stemming from an explosion of vulgarity and noise when she attempted to enter a county courthouse without a required mask. 

Muhammad succeeded in obtaining reversal of the conviction, arguing that her use of vulgarity did not mean that the standards of obscenity ink the state statute, which conforms to the standards established concerning sexually offensive language.

The Pennsylvania Superior Court concluded that non-sexual offensive and disrespectful words do not meet the statutory standards for disorderly conduct.  Pennsylvania precedent compels this conclusion.  Moreover, the Commonwealth agreed with Muhammad’s view.

Notwithstanding their decision, a separate concurrence acknowledged the force of controlling precedent but implored the legislature to address the issue, and noting that Muhammad “deserves to be penalized for the public use of explicit, offensive language directed at Luzerne County deputies in the courthouse annex,  a place where the rule  of law is sacrosanct.”  Slip op. Concurrence, p. 1. 

Commonwealth v. Muhammad, Pa. Super. Ct. January 11, 2023 Opinion

Commonwealth v. Muhammad, Pa. Super. Ct. January 11, 2023 Concurrence

Posted on by justlawfulblog

Eighth Circuit Again Upholds Permanent Injunction Precluding Government Enforcement Against Religious Objections to Regulations Requiring Provision of Gender Transition Services

The Religious Sisters of Mercy, et al. v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-11174 (8th Cir.) Opinion December 9, 2022.

Franciscan Alliance, et al., v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-1890 (8th Cir.) Opinion August 26, 2022

The Affordable Care Act (ACA) references and incorporates provisions found in civil rights laws which preclude discrimination on the basis of sex.  Throughout regulatory iterations issued by the Department of Health and Human Services (HHS), and in light of the Supreme Court’s interpretation of the scope of prohibitions in the civil rights laws in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and further in the light of the absence of religious exemptions in some regulatory provisions, plaintiffs have presented objections to federal courts, stating that any requirement that they provide gender transition treatment would unduly burden sincerely held religious beliefs, all in violations of the Religious Freedom Restoration Act (RFRA).

In the most recently decided case, a federal district court awarded summary judgment to plaintiffs, finding that the government’s acts and regulations substantially burdened the Catholic entities’ practice of religion and finding that less restrictive means existed that would allow the government to meet its legislative goals, e.g., through cost assumption or the awarding of subsidies to other providers for the benefit of transgender individuals seeking transition care.

Observation: This litigation encompasses actions by all coordinate branches of the federal government and their agencies.  Additionally, the Department of Health and Human Services and the Equal Employment Opportunity Commission have agreed to join forces to pursue enforcement of laws pertaining to discrimination in transitional health care.  It may be wondered whether both obfuscation through repeated regulation and the joining of forces has been intended to deter challenges to the federal government’s positions.

The federal government has presented multiple jurisdictional challenges to plaintiffs’ complaints, asserting that plaintiffs lack standing and the issues lack ripeness.

The Eighth Circuit has concluded that plaintiffs face a credible threat of enforcement action.  The appellate panel rejected the idea that the matter is not ripe where plaintiffs’ stance concerning transgender services is in clear violation of federal law.  Judicial review is apt where plaintiffs face an “impossible choice:”  plaintiffs must choose to violate federal law or to violate their religious beliefs, an untenable burden.  Slip Op. at 38.

The Eighth Circuit has established an expansive view of what is required to establish irreparable harm.  All that is required is that plaintiffs establish a likely violation of RFRA:  “…irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA.”  Slip Op. at 39 (citations omitted).

The appellate panel affirmed the award of permanent injunctive relief to plaintiffs with the exception of certain parties found not to have established associational standing.

The Religious Sisters of Mercy, et al. v. Becerra, et al., No. 21-1890 (8th Cir.) December 9, 2022

Franciscan Alliance, et al. v. Becerra, et al., No. 21-11174 (8th Cir.) August 26, 2022

Posted on by justlawfulblog

Eleventh Circuit Court of Appeals to (Trump-Requested) Special Master: “You’re Fired!”

Trump v. United States of America, No. 22-13005 (11th Cir.) Opinion and Order entered on December 1, 2022, reversing and vacating order of United States District Court granting plaintiff Trump equitable relief in a September 5, 2022 order authorizing the appointment of a Special Master to oversee review of documents and things seized from the former President’s residence in August, 2022.

The United States Court of Appeals for the Eleventh Circuit has concluded that the trial court hearing former President Trump’s request for judicial oversight of the review of materials seized from his residence was in error in granting the relief sought.  As courts of limited jurisdiction, federal courts cannot exercise equitable jurisdiction absent “callous disregard” of the constitutional rights of an individual to whom a warrant is directed. Such circumstances are not present in this case notwithstanding that a former President is involved.  Were the courts to permit challenges to warrants duly authorized and executed in non-extreme circumstances, challenges to searches and seizures would be routinely challenged, impeding, if not crippling, the work of federal investigators.  An urgent need for specific items, denial of which would precipitate grave and irreparable harm, might be grounds for relief, but the general assertions presented in this case do not demonstrate such a need.  Recitals of statutory possessory interests are not availing where all seizures involve items of possessory interest. 

Trump v. USA, No. 22-13005 (11th Cir.) Order and Opinion December 1, 2022

 

Posted on by justlawfulblog

Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

Posted on by justlawfulblog

Expedition upon Expedition: Former President Trump Seeks Supreme Court Intervention to Reverse the Eleventh Circuit’s Intervention in Special Master Proceedings; Department of Justice Seeks to Speed Up Appellate Review

Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.

Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order.  The lower court’s order precluded the use of documents with classification markings in  a criminal investigation while the documents were under review by a Special Master appointed by the court.  The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.

The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling.  Such rulings are not permitted except in limited circumstances.

At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.

 

Application to Vacate Eleventh Circuit Order October 4, 2022

Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022

Motion to Expedite Appeal September 30, 2022

Posted on by justlawfulblog

Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review

Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).

In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202