Sunday, May 26, 2019

EEOC v. North Memorial Health Care: What's the difference between denial of religious accommodation and retaliation?

The Fourth Circuit's decision in EEOC v. North Memorial Health Care provides helpful guidance on whether an employee who is denied a religious accommodation has a religious accommodation claim, a retaliation claim, or both.

In this case, Emily Sure-Ondara was given a conditional job offer, and she then revealed to the defendant that she wanted a religious accommodation because her religious beliefs prevented her from working from sundown on Fridays until sundown on Saturdays. After concluding that it could not accommodate the claimant's religious beliefs, the defendant withdrew the job offer. In Sure-Ondara's EEOC charge, she alleged religious discrimination and/or retaliation. In bringing suit on Sure-Ondara's behalf, however, the EEOC alleged only retaliation. As explained by the Fourth Circuit, "when an employee or applicant requests a religious accommodation, and the request is denied by an employer such as North Memorial that accommodates reasonable requests that do not cause 'undue hardship,' there is no basis for an opposition-clause retaliation claim." Thus, in this case, the fact that the defendant withdrew the conditional job offer was merely the result of the failure to provide an accommodation. The only claim that the EEOC could have brought on behalf of Sure-Ondara was for denial of religious accommodation. This distinction is important because an employer is not required to provide an accommodation that results in "undue hardship," which the Supreme Court has defined as anything more than a de minimis cost or burden. By contrast, if the defendant's rescission of the conditional job offer was retaliatory, then it would have been per se unlawful. That's a huge difference.

As recognized by the Fourth Circuit, it's possible for someone requesting an accommodation to have a retaliation claim if the employer does not just deny the individual the accommodation and also takes an adverse action for requesting the accommodation. If an employee requests an accommodation, and the employer denies the accommodation and fires the employee, she would have both a denial of accommodation claim and a retaliation claim. Similarly, if an employer granted an accommodation but retaliated for requesting the accommodation, the employee would have a retaliation claim, but no denial of accommodation claim. In this case, the only action taken by the employer was denial of accommodation, so that's the only potential claim that the EEOC could have brought on behalf of Sure-Ondara. 

Although the dissent criticizes the majority for interpreting retaliation protections too narrowly, I think it's obvious that the majority got it right in distinguishing between two fundamentally different kinds of claims and clarifying the limited circumstances when someone who has requested a religious accommodation will have a retaliation claim. If the dissent and EEOC were correct, then the defendant's withdrawal of the job offer would have been per se unlawful, regardless of what impact granting the accommodation would have had on the defendant's business operations. By contrast, if the defendant had never made a conditional job offer and rejected Sure-Ondara up front because she needed an accommodation, the only claim would be denial of accommodation, and the defendant could allege undue hardship. This distinction makes no sense at all: "[A]s a job applicant with no prior employment relationship with North Memorial, [Sure-Ondara's] failure to obtain the position she sought did not give rise to a claim of unlawful retaliation . . . . The EEOC seeks to avoid this conclusion by emphasizing that North Memorial committed unlawful retaliation when it rescinded its conditional offer of employment. This is sophistry. Sure-Ondara had the same right to religious accommodation as a job applicant under [Title VII] with or without a conditional job offer. Thus, rescinding that offer was not an adverse employment action."

The dissent further contended that Sure-Ondara's claim was properly characterized as retaliation since the defendant withdrew the job offer despite Sure-Ondara's assurances that she wanted the job regardless of whether she could be accommodated and that she would show up for work on a Friday evening even if she could not find a replacement. However, the dissent did not dispute that the defendant was entitled to rescind the offer if it actually believed that Sure-Ondara would not show up. Having made that concession, I don't see what room was left for recognition of a retaliation claim. If the defendant honestly believed that Sure-Ondara would show up, is it really plausible that the defendant would have rescinded its job offer merely because she had requested an accommodation? In my view, no. It seems much more likely that, despite Sure-Ondara's assurances, the defendant concluded that it would be taking too much of a risk in hiring her, rather than that the defendant was merely punishing her for requesting the accommodation.  Moreover, in order to show that an employer was lying about its asserted reason, it's usually necessary to point to someone outside the protected class. 

Significantly, although the dissent apparently did not question that the defendant could have lawfully rescinded its offer if it honestly believed Sure-Ondara would not show up on Fridays, I disagree. If an employer denies an applicant a job based on assumptions stemming from her religious beliefs, that's religious discrimination -- but it's not retaliation, regardless of how the employer learned about the applicant's religious beliefs.

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.