Neutral Laws with Discretionary Exemptions Trigger Strict Scrutiny &
Robust Title VII Accommodation Standards

Introduction

In Alexander Smith v. City of Atlantic City, 3rd Cir. No. 23-3265 (May 30, 2025), the Third Circuit addressed two core legal questions: (1) whether a facially neutral, generally applicable workplace grooming policy that contains formal and informal exception mechanisms nevertheless triggers heightened Free Exercise protection; and (2) under Title VII, what standard governs an employer’s duty to accommodate religious practices and what constitutes an “undue hardship.” Firefighter Alexander Smith, a devout Christian who believes his faith compels him to maintain a beard, challenged the City’s “clean-shaven” rule on Free Exercise, Equal Protection and Title VII grounds. The panel’s ruling signals a shift back to strict scrutiny for certain “neutral” laws and refines the Title VII accommodation framework, repudiating any “de minimis” or “good-faith only” shortcuts.

Summary of the Judgment

The Third Circuit held:

• Free Exercise Clause: The grooming rule—though neutral on its face—contained both a formal mechanism for individualized exemptions (captain’s discretion) and an informal exception for administrative staff. Those carve-outs rendered the policy not “generally applicable” under Employment Division v. Smith and Fulton v. Philadelphia, triggering strict scrutiny. The City’s safety interest, while compelling, was not narrowly tailored because less restrictive alternatives (e.g., testing beard-wearing Firefighters in SCBA fit-tests, reassigning duties) remained untried.
• Title VII (Accommodation): The employer’s good-faith consideration of Smith’s request did not resolve the accommodation claim. The proper inquiry is whether granting an accommodation imposes an “undue hardship”—a “substantial” burden in context—not merely a de minimis one. The City could not show as a matter of law that Smith’s beard would substantially impair its firefighting operations.
• Title VII (Retaliation): Smith’s request for a religious exemption and subsequent lawsuit were protected activities. Ordering him to respond to a 2020 tropical storm emergency—contrary to longstanding protocol barring him from fire suppression—and suspending him for insubordination constituted materially adverse actions. The record contained sufficient evidence of retaliatory animus and procedural oddities to create a factual dispute on causation and pretext.
• Equal Protection: The policy was neutrally enforced against all facial-hair requests. No similarly situated employees received exemptions, so there was no selective enforcement based on religious status.
• Preliminary Injunction: On appeal, the court found that Smith demonstrated a likelihood of success on his Free Exercise and Title VII accommodation claims, irreparable harm from the denial of religious freedom, and a public interest in upholding First Amendment rights. The injunction must issue pending final resolve of those claims.

Analysis

1. Precedents Cited

• Employment Division v. Smith, 494 U.S. 872 (1990) – Neutral, generally applicable laws face only rational‐basis review absent exceptions.
• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) – A policy with any mechanism for individualized exemptions is not generally applicable, triggering strict scrutiny.
• Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) – Collection of underinclusive exceptions defeated asserted compelling interests.
• Trans World Airlines v. Hardison, 432 U.S. 63 (1977) – Historically applied a de minimis “undue hardship” standard under Title VII, now overruled in part.
• Groff v. DeJoy, 600 U.S. 447 (2023) – “Undue hardship” means “substantial” burden, not merely any burden or cost.
• Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) – Title VII retaliation requires a materially adverse action likely to deter protected conduct.

2. Legal Reasoning

a. Free Exercise—Neutrality & General Applicability

• Neutral on its face does not end the inquiry. Under Smith, genuinely neutral, generally applicable laws that lack exception mechanisms avoid heightened scrutiny.
• teaches that the mere presence of a formal exemption process (captain’s discretion) or an informal carve-out (no fit‐testing for administrative Firefighters) renders the policy not generally applicable. Government officials are “invite[d] … to decide which reasons … are worthy of solicitude.” 593 U.S. at 537.
• Strict scrutiny thus applies: the City’s asserted compelling interest in firefighter safety (avoiding SCBA-seal breaches) required a narrowly tailored response. Less restrictive means—such as testing Smith’s beard-wearing fit, exempting him from suppression, or reassignment—were unexplored.

b. Title VII Religious Accommodation

• Two‐step framework: (1) Plaintiff shows sincere belief, conflict with work requirement, notice to employer and discipline threatened; (2) Employer shows granting an accommodation imposes an “undue hardship.”
• Undue Hardship—post‐Groff—means a “substantial” burden, “excessive” or “unjustifiable” in the overall context. Mere “good faith” effort or a “de minimis” cost will not suffice.
• Here, the City’s safety interest did not translate into an undisputed “substantial burden”: no Air Mask Technician had been forced into suppression in 35+ years, Smith is willing to quarter-inch trim or fit-test with a beard, and alternative staffing or reassignment remained available.

c. Title VII Retaliation

• Protected conduct: accommodation request, HR complaint, lawsuit.
• Materially adverse action: unprecedented order during Tropical Storm Isaias to battle a (nonexistent) fire without training, followed by a 40-day suspension.
• Causation & Pretext: sudden departure from decades‐old protocols, direct linkage to Smith’s suit, and inconsistent City explanations raise genuine fact disputes.

d. Equal Protection

• Selective‐treatment claim fails when no similarly situated secular comparator received exemptions. Off-duty five-o’clock shadows are permitted so long as they do not break the SCBA seal—no better analogy to a full beard.

3. Impact

• Free Exercise doctrine will no longer treat “neutral” laws as automatically safe if they contain any exception regime. Governments must choose: remove discretionary carve-outs or face strict scrutiny.
• Title VII accommodation sees the demise of “de minimis” and “good faith only” tests, raising the bar to “substantial, context-specific” hardship showings. Employers must ‑- at a minimum ‑- test accommodations and explore alternatives before litigation.
• Government policies with safety justifications (e.g., uniforms, ID badges, protective gear) must assess formal/informal exemptions to avoid heightened review.
• This decision strengthens religious liberty by pairing the Free Exercise Clause’s strict scrutiny with Title VII’s meaningful accommodation standard.

Complex Concepts Simplified

• Neutral & Generally Applicable: A rule that applies to everyone equally, without allowing special exceptions. But if it creates a formal or informal carve-out (e.g., managers can grant waivers), it is not generally applicable.
• Strict Scrutiny: The highest level of judicial review. The government must prove a “compelling interest” and that the law is “narrowly tailored” (no less restrictive way exists).
• Rational Basis Review: A low bar. The law must be “rationally related” to a “legitimate” government interest. Courts defer to lawmakers.
• Title VII Religious Accommodation: Employers must reasonably accommodate employees’ religious practices unless doing so causes a “substantial” burden on the operation of the business.
• Undue Hardship: Post-Groff, means more than a minor inconvenience or small added cost. The hardship must be “excessive” or “unjustifiable.”
• Retaliation Claim: It is illegal to punish employees for asserting their rights under Title VII. Punishment includes discipline, loss of benefits, demotion, or anything that might discourage similar complaints.

Conclusion

Alexander Smith v. City of Atlantic City reaffirms religious liberty as our “first freedom.” The Third Circuit held that facially neutral rules with exception mechanisms are not generally applicable and must face strict scrutiny. Simultaneously, Title VII’s religious‐accommodation provision demands more than perfunctory “good faith” or de minimis burdens—it requires a genuine, contextual appraisal of “undue hardship.” In safety-sensitive workplaces, employers will now need to document why full enforcement is essential or proactively test and pursue reasonable accommodations. This decision advances the twin aims of protecting religious exercise and preserving workplace efficiency through careful, fact-driven tailoring.