Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “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. Employers considering requests for religious accommodation should, despite this decision, proceed carefully when considering the request.
In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law. On July 6, 2017, the Court ruled, and agreed with the employer.
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. 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 as a Seventh Day Adventist. On March 15, 2017, the employer moved for summary judgment. The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.
What Did the Court Rule?
The Court sided with the employer, holding that a religious accommodation request is not protected activity.
The Court noted that as far as the Court and parties were aware, no court in the 8th Circuit had decided whether requesting a religious accommodation is a protected activity under Title VII. The Court reasoned that it must interpret Title VII according to its plain language. 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. Applying that plain language, the Court concluded that “requesting a religious accommodation is not a protected activity.”
The Court noted that the plaintiff had not “opposed” any practice, since there was no evidence she communicated to the employer that its denial of her accommodation request was unlawful. “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” the Court stated.
Similarly, plaintiff had not made any charge, testified, or assisted in any investigation, proceeding or hearing prior to the revocation of her offer. Thus, “the court is unable to fit [the employee’s] accommodation request within the plain language of the statute.”
The Court declined to extend to Title VII the reasoning of an 8th Circuit case that had held that requesting a disability accommodation was protected activity under the Americans with Disabilities Act (ADA). In addition to noting that the 8th Circuit ADA case had itself been questioned, the Court noted key differences between the language of ADA and that of Title VII.
The Court also held that the EEOC’s guidelines, which advise that requesting accommodation is protected activity under Title VII, are “unpersuasive.”
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. The Court’s decision in this case cites to federal cases that have held both ways around the country. 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 in the relevant jurisdiction — 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.