In EEOC v. North Memorial Health Care, No. 15-3675(DSD/KMM) (D. Minn. July 6, 2017), District Court Judge David Doty ruled that the defendant did not engage in unlawful retaliation against Emily Sure-Ondara by rescinding her conditional job offer after she asked that she not be required to work Friday evenings, because of her religious beliefs. Judge Doty reasoned that, by requesting a religious accommodation, Sure-Ondara had not "opposed any practice made an unlawful employment practice by [Title VII]" or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Sure-Ondara therefore had not engaged in conduct protected by Title VII's retaliation provision, and the defendant was entitled to summary judgment on the EEOC's retaliation claim on behalf of Sure-Ondara.
Although I find the result unfortunate, I largely agree with the court's analysis. In EEOC v. Abercrombie & Fitch Stores, the Supreme Court held that a plaintiff can establish intentional religious discrimination if an employer's refusal to hire the plaintiff was motivated by the plaintiff's need for a religious accommodation. In this case, however, the EEOC rejected Sure-Ondara's religious accommodation claim and construed the defendant's rescission of the job offer as raising solely a retaliation claim. (Perhaps the agency concluded that providing an accommodation would have created an undue hardship.) But from the employer's perspective, a request for an accommodation merely notifies it of a potential legal obligation, and does not accuse it of failing to meet that obligation. Therefore, as the court concluded, a request for religious accommodation does not appear to be either opposition to discrimination or participation in Title VII proceedings protected by section 704(a) of Title VII.
On the other hand, I think someone who is subjected to retaliation for requesting a religious accommodation should be able to bring a claim under section 703(a) of Title VII, which is the provision that gives employees the right to religious accommodation. In Gómez-Pérez v. Potter, the Supreme Court held that a federal employee's right not to be subjected to age discrimination includes the right not be to be subjected to retaliation for complaining about age discrimination. The federal sector provision of the Age Discrimination in Employment Act prohibits age discrimination against federal employees but not does not explicitly prohibit retaliation. Nonetheless, the Court held that retaliation for complaining about age discrimination constitutes a form of age discrimination. By analogy, rather than trying to shoehorn a request for accommodation into Title VII's retaliation provision, better to argue that retaliation for requesting a religious accommodation is a violation of the right to reasonable accommodation.
So if Sure-Ondara was subjected to retaliation for requesting a religious accommodation, her claim would be more likely covered under Title VII's prohibition against religious discrimination, including denial of accommodation, pursuant to 703(a), than under Title VII's explicit prohibition against retaliation pursuant to 704(a).
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
