Why it matters

Requests for religious accommodations should not be categorically considered protected activity under Title VII’s anti-retaliation clause, a divided panel of the U.S. Court of Appeals for the Eighth Circuit recently ruled, affirming summary judgment in favor of the employer. The Equal Employment Opportunity Commission (EEOC) filed suit against North Memorial Health Care on behalf of a Seventh Day Adventist nurse. During her interview with the hospital, she learned that the union contract would require her to work every other weekend. When she received a conditional job offer, she informed human resources (HR) that she could not work Friday nights or Saturday days due to religious reasons. After her offer was revoked, the EEOC sued. The district court granted summary judgment in favor of North Memorial and the Eighth Circuit affirmed. Requesting a religious accommodation—as distinct from opposing the allegedly unlawful denial of a religious accommodation—was not a protected activity, the panel held, rejecting the agency’s position that the nurse’s request for an accommodation was statutorily protected activity.

Detailed discussion

Located in Robbinsdale, Minnesota, North Memorial Health Care conducts an “Advanced Beginner” residency program to attract hospital nurse applicants by providing training to registered nurses who previously worked in nonhospital settings (such as home care).

Emily Sure-Ondara applied through the program to work for North Memorial’s Collaborative Acute Care for the Elderly Unit. Although she was informed that the position required nurses to work eight-hour shifts every other weekend—terms and conditions established by North Memorial’s collective bargaining agreement with the Minnesota Nurses Association—Sure-Ondara did not disclose that her religion would prevent her from working from sundown Fridays to sundown on Saturdays.

Sure-Ondara was offered and accepted a conditional offer that included a letter stating the requirement to work every other weekend. When she went to the hospital to complete her pre-employment paperwork, Sure-Ondara disclosed that she was a Seventh Day Adventist, telling a human resources (HR) employee, “I need to be accommodated because of my religious beliefs, that I need Friday nights off for Sabbath rest. I don’t work Fridays.”

Another HR employee followed up with Sure-Ondara and advised that if she was unable to work every other weekend per the union agreement, North Memorial might need to offer the position to another candidate. Sure-Ondara replied that she wanted the job and would “make it work” by finding a substitute for her Friday night shift or come in herself in an emergency or life-or-death situation.

A group of HR employees met to discuss Sure-Ondara’s request for religious accommodation and decided to rescind the employment offer because it would not be possible for a newly trained nurse in the program to consistently trade her Friday night shifts, which are unpopular with most nurses. After North Memorial rescinded the offer, Sure-Ondara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

The agency filed suit on Sure-Ondara’s behalf in September 2015, alleging that North Memorial engaged in unlawful retaliation in violation of Section 2000e-3(a). The district court granted the employer’s motion for summary judgment.

Backed by several religious organizations and the ACLU, the EEOC appealed. Requests for religious accommodation are protected activity under Title VII’s anti-retaliation provision, the agency told the U.S. Court of Appeals for the Eighth Circuit. But the federal appellate panel disagreed, affirming summary judgment in favor of North Memorial.

To establish a prima facie case of unlawful opposition-clause retaliation under Section 2000e-3(a), the EEOC needed to present evidence that Sure-Ondara opposed a practice made unlawful, the court said. The Eighth Circuit asked: What form of employment discrimination did Sure-Ondara oppose?

“Sure-Ondara did not complain that North Memorial unlawfully refused to accommodate,” the panel wrote. “She requested an accommodation, and it is undisputed on this record that North Memorial’s non-discriminatory practice was to consider such requests on a case-by-case basis. After she made the request and no mutually acceptable accommodation was reached, Sure-Ondara’s Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under section 2000e-2(a) for failure to reasonably accommodate.”

The EEOC failed to establish a prima facie case of opposition-clause retaliation, the court said, because merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation. The fact that a request for religious accommodation may be protected activity does not mean it is always “oppositional” activity, the panel added.

For example, if an employer adopted a policy of not accommodating religious practices, an employee who was fired because she objected to this unlawful policy in requesting an accommodation would have an opposition-clause retaliation claim under Section 2000e-3(a), as well as a disparate treatment claim under 2000e-2(a). If an employee or applicant requested a religious accommodation and the employer denied it on the ground that it was not in fact based on a religious practice and fired or refused to hire the employee or applicant because she made the request, this scenario would support an opposition-clause retaliation claim under 2000e-3(a), based on analogous cases under the Americans with Disabilities Act (ADA).

“But 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 under 2000e-3(a),” the panel wrote. “Rather, the employee or applicant’s exclusive Title VII remedy is an unlawful disparate treatment or disparate impact claim under section 2000e-2(a)(1).”

A dissenting opinion would have held that a request for an accommodation constitutes protected activity under Title VII’s anti-retaliation provision, in line with precedent in the parallel ADA context.

To read the opinion in Equal Employment Opportunity Commission v. North Memorial Health Care, click here.