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Seeking religious accommodation not a Title VII protected activity

By Joy P. Waltemath, J.D.

In a closely watched case, the federal district court in Minnesota has granted summary judgment for a hospital that rescinded its conditional offer of employment to a Seventh Day Adventist nurse because she sought a religious accommodation—to not work every other Friday from 11 p.m. – 7 a.m. for religious reasons. Contrary to EEOC guidance, the court expressly found that requesting a religious accommodation, as contrasted with opposing the allegedly unlawful denial of a religious accommodation, was not a protected activity. The EEOC guidance on retaliation, as well as related ADA precedent, was found unpersuasive by the court based on its reading of the plain language of Title VII (EEOC v. North Memorial Health Care, July 6, 2017, Doty, D.).

Conditional job offer revoked. As part of its “Advanced Beginner Program” to attract diverse employees, the hospital emailed the applicant and asked her to apply. After she applied and was interviewed, the hospital extended her a conditional job offer to work the 11-7 night shift. Under the applicable union contract, she would be required to work every other weekend. She told HR that she could not work Friday nights/Saturday mornings for religious reasons. When HR responded 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, the applicant said 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 sent her a letter that it could not accommodate her request and revoked the job offer. Although the hospital said it would consider the applicant for other positions, she was unsuccessful in her application. Ultimately, the EEOC sued on her behalf, advancing only a retaliation claim.

Opposition clause. The hospital argued that the EEOC’s claim should be dismissed because requesting a religious accommodation is not a protected activity. The court was aware of no circuit precedent specifically deciding whether requesting a religious accommodation is protected activity under Title VII, so it looked to the statute’s plain language and found that it was not protected. Under the opposition clause, a plaintiff must communicate her opposition to a practice that she believes, in good faith, is unlawful, but that was not the case here—in fact there was no evidence that the applicant believed or communicated that the hospital’s denial of her religious accommodation request was unlawful. “Merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” reasoned the court.

Participation clause. And the applicant’s accommodation request was not protected activity under the participation clause either. There was no evidence that she “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” prior to her job offer being withdrawn. In essence, the court was unable to fit the applicant’s religious accommodation request within the plain language of the Title VII.

ADA precedent As a rationale for its holding, the court cited Kirkeberg v. Canadian Pacific Railroad, a 2010 Eighth Circuit decision that, although it questioned whether an employee who asserted a right under the ADA to a reasonable accommodation for an alleged disability had “opposed any act or practice made unlawful by the ADA,” still followed an earlier 2003 Eighth Circuit decision, Heisler v. Metro. Council, which held that requesting an ADA reasonable accommodation was protected activity. But “such binding precedent does not exist for Title VII claims,” said the district court here.

Title VII is different. And while the EEOC argued that the court should apply Heisler, where the Eighth Circuit had held that requesting an accommodation was protected activity under the ADA, the court was unpersuaded, first because the appeals court had questioned Heisler due to its failure to apply the plain language of the statute. Second, the court recounted differences between the ADA and Title VII that counseled against applying ADA precedent to a Title VII claim because the ADA protects a broader range of activity. The ADA also makes it “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed … any right granted or protected by this chapter,” yet Title VII has no such provision. To the court, this supported an inference that in enacting the ADA, Congress intended to protect activity that did not fall under the opposition or participation clauses.

“If Congress wishes to extend the same protection to activity under Title VII, it is free to do so, but it is not appropriate for the court to manipulate the plain language of the statute to dictate policy outcomes,” the court concluded, finding for the same reasons, that the EEOC’s guidelines, which advise that requesting an accommodation is protected activity under Title VII, were “unpersuasive.”