Philadelphia DA Must Face Religious Bias Claim Over Vax Mandate

The Philadelphia District Attorney’s Office cannot escape a lawsuit from an employee who was fired for refusing to comply with a Covid-19 vaccine requirement on religious grounds, a federal appeals court ruled.

The US Court of Appeals for the Third Circuit on Monday overturned a lower court ruling that former Assistant District Attorney Rachel Spivack failed to provide evidence that Philadelphia District Attorney Larry Krasner showed hostility toward her religion.

The appeals court found that a jury must resolve factual disputes concerning whether the vaccine mandate was both neutral and generally applicable, and if anti-religious hostility tainted the office’s treatment of religious exemptions.

The Third Circuit’s decision comes as federal courts are still wading into issues concerning the extent faith-based objections to vaccine rules can override workplace policies designed to safeguard others.

The Equal Employment Opportunity Commission recently echoed the need for legal clarity on this issue, filing its first lawsuits against companies over their failure to grant employees religious exemptions to Covid-19 vaccine policies.

Spivack, an Orthodox Jew, requested an exemption to the office’s vaccine requirement on the basis that injecting a product with undisclosed ingredients violates her religious tenets.

She sued Krasner in the US District Court for the Eastern District of Pennsylvania under the First Amendment’s free exercise clause and the Pennsylvania Religious Freedom Protection Act.

But the trial court ruled in favor of Krasner, finding that the evidence showed that it “was intended to prevent sickness and death to the maximum extent possible.”

Krasner testified in lower court proceedings that, in retrospect, he would have allowed former assistant district attorney Rachel Spivack to remain unvaccinated by granting her the option to work remotely, Judge Cheryl Ann Krause emphasized at oral argument in November. That admission undercuts Krasner’s previous argument that the vaccine rule was neutrally applied to all workers, she said.

The Third Circuit panel cited Krasner’s testimony in its decision Monday, saying that a “reasonable jury could interpret” his “comments to evince hostility toward religious viewpoints that influenced the DAO’s treatment of religious exemptions.”

“Krasner’s comments merit particular scrutiny because he was the primary decisionmaker responsible for the vaccine mandate,” Judge Arianna J. Freeman wrote for the court.

But a reasonable jury also could find that Krasner’s comments aren’t enough to show any hostility toward the plaintiff’s religion, she said. “Spivack admitted in her deposition that she never heard from anyone at the DAO that Krasner is hostile to religion,” Freeman wrote.

Krause and Judge Tamika R. Montgomery-Reeves joined the opinion.

The case is Spivack v. City of Philadelphia, 3d Cir., No. 23-01212, 7/29/24.