Why it matters

In a case that was closely watched by employers, the Equal Employment Opportunity Commission (EEOC) has lost an argument that Title VII protected an employee’s request for a religious accommodation. The agency filed suit in Minnesota federal court when Emily Sure-Ondara’s conditional offer of employment was rescinded. After being offered a job as a nurse at North Memorial, she requested to work every other Friday from 11 p.m. to 7 a.m. for reasons related to her religious beliefs as a Seventh Day Adventist. The hospital withdrew its offer, Sure-Ondara filed a charge of discrimination with the EEOC, and the agency sued. But the court granted the hospital’s motion to dismiss, finding the plain language of the statute did not protect a request for accommodation. Instead, the court said that the statute protects only the opposition of an allegedly unlawful denial of a religious accommodation and that Sure-Ondara did not engage in activity falling under the participation clause. “[M]erely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” the court wrote.

Detailed discussion

In November 2013, nurse Emily Sure-Ondara applied for a position in North Memorial Health Care’s Collaborative Acute Care for the Elderly unit. After multiple interviews, the hospital extended her a conditional offer of employment. Sure-Ondara was scheduled to work the night shift from 11 p.m. to 7 a.m. and, pursuant to a collective bargaining agreement between North Memorial and the Minnesota Nurses Association, was also required to work every other weekend.

After she received the offer, Sure-Ondara reached out to human resources to explain that as a Seventh Day Adventist, she could not work on Friday nights for religious reasons and would need an accommodation. The HR employee explained the terms of the union agreement and said that if Sure-Ondara was unable to work every other weekend, the hospital would need to offer the position to another candidate.

Sure-Ondara responded that she would “make it work,” either by finding a substitute for her Friday-night shift or coming in if she could not find a replacement. Several members of HR later met to discuss the accommodation request and concluded that granting it was not feasible, expressing concern that she would not show up for her Friday-night shift if she couldn’t find a replacement. North Memorial then withdrew its offer of employment.

Asserting a claim that the hospital engaged in religious discrimination by denying her requested accommodation, Sure-Ondara filed a charge with the EEOC, and the agency filed suit on her behalf in Minnesota federal court.

North Memorial responded with a motion to dismiss, arguing that requesting a religious accommodation is not a protected activity. Applying the plain language of Title VII, U.S. District Court Judge David S. Doty agreed.

Under Title VII, an employee engages in protected activity when she either “‘oppose[s] any practice made an unlawful employment practice by [Title VII]’ or ‘ma[kes] a charge, testifie[s], assist[s], or participate[s] in any manner in an investigation, proceeding, or hearing under [Title VII].’” But Sure-Ondara’s claims did not fit into either of the two clauses (commonly known as the opposition clause and the participation clause), the court said.

“Under the opposition clause, a plaintiff must communicate her opposition to a practice that she believes, in good faith, is unlawful,” the court wrote. “There is no evidence that Sure-Ondara believed that North Memorial’s denial of her religious accommodation request was unlawful. And even if she did, she did not communicate that belief to North Memorial. In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.”

Judge Doty cited decisions from federal courts in Maryland, New York and Washington, D.C., reaching a similar result.

As for the participation clause, no evidence was presented that Sure-Ondara made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing prior to her termination. “The court is unable to fit Sure-Ondara’s accommodation request within the plain language of the statute,” the court said.

The EEOC’s attempts to analogize Title VII to the Americans with Disabilities Act’s (ADA) protection for requesting an accommodation fell short, Judge Doty found, given the differences between the two statutes. Not only does the ADA protect “a broader range of activity than does Title VII,” but Congress clearly knows how to provide protection for requesting an accommodation and has yet to extend it under Title VII.

Although some courts (in Illinois and New York, as well as the U.S. Court of Appeals for the Seventh Circuit) have held that requesting an accommodation is a protected activity under Title VII, “they did so when the issue was not in dispute and without analyzing Title VII’s language,” the court said. The court also refused to rely on the EEOC’s interpretation of Title VII found in agency guidance, which “advise[s] that requesting an accommodation is protected activity under Title VII,” finding it unpersuasive.

“As a result, the court holds that requesting a religious accommodation is not protected activity under Title VII, and summary judgment is therefore warranted,” Judge Doty wrote.

To read the order in EEOC v. North Memorial Health Care, click here.