Seyfarth Synopsis: In a recent federal case the employer has challenged the EEOC Enforcement Guidance on Retaliation taking the position that a religious accommodation request does not meet the test for protected activity under Title VII. In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law –and, in any event — to proceed carefully when considering the request.

The Equal Employment Opportunity Commission (EEOC) has maintained in its Enforcement Guidance on Retaliation that “persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.” In its Questions and Answers: Religious Discrimination in the Workplace, the EEOC “has taken the position that requesting religious accommodation is protected activity.”

In a federal case pending in Minnesota, one employer has challenged this guidance by the EEOC, and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675, in the U.S. District for the District of Minnesota. In that case, the EEOC sued the employer hospital claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs. On March 15, 2017, the employer moved for summary judgment. The employer argued that the retaliation claim fails on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.

The Employer’s Argument

The employer argued that the EEOC’s informal guidance is inconsistent with Title VII’s plain language, and therefore was not entitled to any deference.

Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII. In its motion for summary judgment, the employer argued that a religious accommodation request falls in neither category.

The employer argued that requesting a religious accommodation is not opposing an unlawful practice, and neither is it making a charge or otherwise assisting in a Title VII investigation. The employer maintained that the EEOC has conceded as much in its retaliation guidance, by stating that a person requesting accommodation “might not literally ‘oppose’ discrimination or ‘participate’ in a complaint process.”

The employer’s motion cited two Circuit Court of Appeals opinions that have assumed, without deciding, that a religious accommodation request can amount to protected activity. However, the employer maintained that no federal appellate authority has directly and specifically analyzed the issue. The employer cited two federal district courts, the District of Maryland and District of Columbia, that have held that a request for religious accommodation, without more, does not amount to protected activity.

Anticipating a likely argument by the EEOC, the employer sought to distinguish a request for religious accommodation from a request for an ADA disability accommodation, which has been held by some courts to amount to protected activity. The employer pointed to differences in the language of Title VII and the ADA.

Employment lawyers will be watching for the EEOC’s Opposition to the Motion for Summary Judgment, and ultimately the decision of the District Court to see how the employer’s theory fares.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law. As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

A more conservative approach should guide an employers’ response to religious accommodation requests. Employers responding to a religious accommodation request would be wise to assume — until there is settled, binding law to the contrary — that a request for religious accommodation may be construed as protected activity under Title VII. As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law. Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented .