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Volume XIII, Number 152


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Smucker’s Out of a Jam: Sixth Circuit Says Being a Federal Contractor Does Not Make You a State Actor

If you take on a federal contract, does that make you a state actor? No, according to a unanimous Sixth Circuit panel in Ciraci v. J.M. Smucker Company.

The Facts

During World War II, the Army included Smucker’s apple butter in its ration kits, resulting in a federal contractor relationship that has “stuck” ever since. As a federal contractor, in 2021 Smucker’s was subject to President Biden’s Executive Order 14042, which required employees working on certain federal contracts to get a COVID-19 vaccination. After Smucker’s released the company’s vaccine mandate, four Smucker’s employees requested religious exemptions and were denied. Subsequently, the now former employees brought suit under the Free Exercise Clause, arguing the denial of their religious exemption impinged on their First Amendment rights.

The Court’s Decision

The district court and the Sixth Circuit concluded that the plaintiffs could not sue Smucker’s for such a constitutional violation because Smucker’s was not a government actor. The Sixth Circuit addressed whether the federal government contract was enough to “stick” Smucker’s with government actor status. According to the court, Smucker’s “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 [Smucker’s] to deny anyone an exemption.”

In the words of the opinion, “making jam is simply not a government function.” Without a closer nexus to the government than merely operating a federal contract, Smucker’s should be considered a private actor. A private company’s compliance with a federal mandate does not in itself create state action. No state action, no denial of freedom of religion.


Although federal contractors may be “out of a jam” from a Constitutional law perspective, we should all keep in mind the following:

  • Title VII  Private employers with at least 15 employees are still subject to Title VII’s prohibition against religious discrimination. In the vaccine context, that means you, as a private employer, must determine whether granting or denying a religious exemption (from COVID-19 vaccination or otherwise) imposes an undue hardship. If you are a federal contractor covered by Title VII, evaluate whether you should deny any requested religious exemptions carefully.

  • State laws and constitutions may apply – Don’t forget that each state has its own respective laws regarding religious (or other) exemption procedures.

  • ADA and GINA – Denying an employee a vaccine exemption could also implicate the Americans with Disabilities Act or the Genetic Information Non-Discrimination Act.

© 2023 Bradley Arant Boult Cummings LLPNational Law Review, Volume XIII, Number 80

About this Author

Anne R. Yuengert Employment Attorney Bradley Birmingham

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

Katherine E. Griffin Employment Attorney Bradley Nashville Office

Kate Griffin is an associate in the firm’s Labor & Employment Practice Group.

Kate received her J.D. from the Washington University School of Law, where she was Commentaries editor for the Washington Law Review and president of the International Law Society. Her note, The Good Faith Inquiry: What About the Worker Ants?, was published in Vol. 99, Issue 4 of that journal. Kate’s article, Speech as a Pretext for Deportation: When the Only Choice is Silence, was also published in Vol. 29 of the Willamette Journal...