Labor & Employment Law Daily Religious accommodation request wasn’t protected activity here, but broad issue wasn’t ‘categorically’ resolved
Thursday, November 15, 2018

Religious accommodation request wasn’t protected activity here, but broad issue wasn’t ‘categorically’ resolved

By Marjorie Johnson, J.D.

Siding with the employer in a closely watched case, a divided Eighth Circuit panel declined to revive an EEOC lawsuit alleging that a hospital engaged in unlawful retaliation by rescinding its conditional offer of employment to a Seventh Day Adventist nurse because she sought a religious accommodation of the collectively bargained requirement that she work every other weekend. Concluding that the issue of whether requests for religious accommodations are protected activity under Title VII’s antiretaliation clause “cannot be resolved categorically,” the panel majority held that there was no basis for an opposition-clause retaliation claim here since the applicant’s request was denied by an employer that had a policy of accommodating reasonable requests that did not cause undue hardship. Thus, her exclusive Title VII remedy was a disparate treatment or disparate impact claim. Interpreting Supreme Court and Eighth Circuit precedent differently, Judge Grasz would have reversed the grant of summary judgment (EEOC v. North Memorial Health Care, June 12, 2018, Loken, J.).

Conditional offer revoked. As part of its “Advanced Beginner Program” to attract diverse employees, the hospital emailed the applicant and asked her to apply. During her interview, she learned that the applicable union contract would require her to work every other weekend. However, she did not disclose that her religion would prevent her from working Friday nights. After she was conditionally offered a job and advised that she would be scheduled to work every other weekend, she told HR that she could not work Friday nights/Saturday mornings for religious reasons. HR replied that the union contract required weekend work and if she could not work it, the hospital might have to offer the job to someone else. She responded that she could make it work, and would either find someone to work her shift or come in herself. Concerned that this was not a workable solution, the hospital advised her that it could not accommodate her request and revoked the job offer. It also said it would consider her for other positions, but she was unsuccessful in her application.

The EEOC sued on her behalf. However, while the applicant’s Title VII charge alleged disparate treatment, the EEOC only advanced a claim for retaliation under Title VII’s opposition clause.

District court rules against EEOC. The district court granted summary judgment in favor of the hospital. It found that contrary to EEOC guidance, requesting a religious accommodation—as contrasted with opposing the allegedly unlawful denial of a religious accommodation—was not a protected activity. The court found unpersuasive the EEOC guidance on retaliation, as well as related ADA precedent, basing its holding on its reading of the plain language of Title VII instead.

Entitled to reasonable accommodation. The Supreme Court’s decision in EEOC v Abercrombie & Fitch Stores, Inc., made clear that the job applicant was entitled to reasonable accommodation of her religious practice as a Seventh Day Adventist, explained the Eighth Circuit. Moreover, it was undisputed that the hospital’s policy and practice at that time was to consider requests for religious accommodations on a case-by-case basis, and to grant requests that did not impose an undue hardship.

What did applicant oppose? The term “oppose,” being left undefined by Title VII, carries its “ordinary meaning.” In Crawford v. Metro. Gov’t of Nashville and Davidson Cty., the Supreme Court held that when an employee communicates his or her belief that an employer has engaged in a form of employment discrimination, “that communication virtually always constitutes the employee’s opposition to the activity.” The question here, therefore, was: what “form of employment discrimination” did the applicant oppose?

The EEOC urged the Eighth Circuit to follow its decision in Ollis v. Hearthstone Homes, Inc., upholding a jury verdict that an employer violated Title VII by firing an employee because he did not want to participate in an activity that conflicted with his religious beliefs. The EEOC argued that in requesting an accommodation, the applicant was similarly complaining that requiring her to work Friday shifts conflicted with her religious beliefs. However, this was a “false equation,” the appeals court said, as she did not complain that the hospital unlawfully refused to accommodate. Rather, she requested an accommodation and the hospital’s nondiscriminatory practice was to consider such requests on a case-by-case basis. After she made the request and no mutually acceptable accommodation was reached, her Title VII remedy as an unsuccessful job applicant was a disparate treatment claim for failure to reasonably accommodate.

Request not same as oppose. The majority rejected the EEOC’s (and dissent’s) position, relying on the circuit’s decisions applying the retaliation provisions of the ADA, that she had an opposition-clause retaliation claim simply because her request for an accommodation was statutorily protected activity. Whether an employee or job applicant must make a request for religious accommodation to maintain a Title VII claim for religious discrimination was an open question after Abercrombie & Fitch, but the express reference to religious accommodation in § 2000e(j) can be construed “as evidencing Congress’ intent to protect requests for religious accommodation.” However, the fact that such a request is “protected activity” does not mean it is always “oppositional” activity.

Accommodation denied based on policy. Sometimes such a request will be “oppositional” activity, such as when an applicant makes a good-faith religious accommodation request, and the employer denies the accommodation on the ground that it was not in fact based on a religious practice, but then refuses to hire the applicant because she made the request. There, the reasoning in ADA cases would support an opposition-clause retaliation claim even if the employer successfully defended a disparate treatment claim. But where, as here, an applicant requests a religious accommodation, and the request is denied by an employer that accommodates reasonable requests that do not cause “undue hardship,” there is no basis for an opposition-clause retaliation claim.

Thus, even assuming the applicant’s request for a religious accommodation was made in good faith, her request did not reflect—much less communicate—opposition or resistance to any hospital employment practice. Though she may have a claim of discrimination, as a job applicant with no prior employment relationship with the hospital, her failure to obtain the position she sought did not give rise to a claim of unlawful retaliation. Accordingly, dismissal of the EEOC’s retaliation claim on summary judgment was affirmed.

Dissent: Request was opposition. Judge L. Steven Grasz relied on the Supreme Court’s broad interpretation of Title VII’s opposition clause in Crawford, as well as the “near-universal consensus of circuit courts of appeals interpreting almost identical statutory language in the ADA,” to reach the conclusion that the applicant’s request for a religious accommodation qualified as “opposition” to an unlawful employment practice under Title VII. In his view, since there were triable issues as to the other elements of the EEOC’s claim, the district court’s grant of summary judgment should have therefore been reversed.

“Common sense dictates that requesting a religious accommodation in most circumstances communicates support for the grant of the request and opposition to its denial,” Grasz explained. Moreover, “adopting too high a standard for opposition could have the unintended effect of forcing requesters to take a confrontational approach in order to be afforded Title VII’s protections against retaliation.” And because the Eighth Circuit has said that retaliation claims under the ADA are analyzed “identically to those brought under Title VII,” Title VII’s anti-retaliation provision should be read “in harmony” with how the Eighth Circuit has read the same provision in the ADA.

After also taking issue with the majority’s examples of what would constitute “opposition,” the dissent found value in the majority’s “apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims.” However, the causation element properly weeds out such claims—not the opposition requirement. Unlike such repackaged claims, the claim here should survive because there was evidence of retaliation: despite the applicant’s willingness to work the job even without the accommodation (she told HR that she would show up for work if she could not find a replacement), the hospital withdrew its job offer, making it reasonable for a jury to infer that it did so because she had requested an accommodation.

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