renew: Braidwood Management v. EEOC was actually decided on June 21, 2023, not last week. I don’t know why this case popped up on my radar this week. There was no application for certification in the case. For the sake of completeness, I’ll leave this post in, but you can skip it.
Enough about the Supreme Court. Let’s focus on the only court in the United States that makes a difference: the Fifth Circuit. Last week, the Fifth Circuit heard two cases involving Braidwood Management. Both cases are headed to the Supreme Court.
The first case, Braidwood Management v. EEOC, held that RFRA provided a defense to Title VII claims:
On the merits, as we explain, we determined that RFRA required Braidwood to be exempted from Title VII on an individual level because compliance with Title VII after Bostock would seriously impact its religious beliefs regarding homosexuality and transgender people. The ability to conduct business with faith executes. Furthermore, the EEOC has completely failed to shoulder its responsibilities, demonstrating its strong interest in denying Braidwood an exemption, even after Bostock.
I wrote about this issue years ago regarding the Indiana RFRA. Circuit courts are divided on whether state RFRAs provide defense to state employment discrimination laws. Now, the Supreme Court must resolve the outstanding issues bostock.
The panel further argued that governments do not always have a compelling interest in eliminating all forms of discrimination:
While the Supreme Court may one day rule that preventing commercial businesses from discriminating against specific factors of sexual orientation or gender identity is such a vital government interest that it overrides religious freedom in all cases, to date it has never Think so. . . . But we don’t have to go too far because the EEOC has failed to live up to its responsibilities. It has not shown strong interest in denying Braidwood a separate waiver. The agency didn’t even try to argue the point, other than to state a general interest in banning all forms of sex discrimination in every potential case.
I made a similar point in an amicus brief I submitted 303 creativity. The court sidestepped the issue, but it will come back.
Going forward, in the Fifth Circuit—unless otherwise provided by SCOTUS—employers can defend against Title VII complaints by bringing an RFRA claim. Specifically, they would claim that the government has no strong interest in enforcing discrimination laws in a way that imposes significant burdens on the free exercise of rights.
The second case, Braidwood Management v. Miller, found that the task force carrying out the ACA’s contraceptive mandate violated the Appointments Clause:
With regard to one of the executive agencies challenged, the U.S. Preventive Services Task Force, we agree that the non-reviewable authority it possesses—the authority to issue preventive care recommendations that insurers are required by law to cover—makes its members the U.S. Preventive Services Task Force The principal officer of the group. Because Xavier Becerra, in his capacity as Secretary of Health and Human Services, failed to effectively address the task force’s constitutional concerns, the district court properly enjoined defendants from performing preventive care duties to the extent that they were required to do so. suggestions.
However, the group did not generally reverse the actions taken by these members. As a result, the status quo remains. Nonetheless, the issue may be another Appointments Clause case that the Supreme Court must resolve.
Cases in the Fifth Circuit’s 2024 overtime docket are heating up as the Supreme Court clears cases from the 5th Circuit’s 2023 overtime docket.
Oh, and in case you missed it, the 5th Circuit split 8-8 on whether to first hear Louisiana VRA cases in full court:
In an en banc vote, eight judges voted en banc for the first hearing (Jones, Smith, Elrod, Willett, Ho, Duncan, Engelhardt and Oldham) and eight judges voted against (Ritchie Mann, Stewart, Southwick, Haynes, Graves, Higginson), Douglas and Ramirez). Judge Wilson was not involved in the consideration of the petition.
As I said before, the 5th Circuit en banc was more or less evenly split. Don’t let the individual panels fool you.
