Request Denied: Retaliation Under Title VII for a Request for Religious Accommodation.

• Author: Buchmiller, Rhett

1. INTRODUCTION

   "Ask and you shall receive" may be helpful for many aspects of one's faith, but it is not sound legal advice when dealing with religious accommodations. The ability to request accommodations for a religious purpose under Title VII of the Civil Rights Act of 1964 ("Title VII") (1) has eliminated the need for followers of faith to choose between religion and work when the two conflict. It does this by requiring an employer to accommodate employees who have a religious conflict, so long as the accommodation does not create an undue hardship. (2) This is the proverbial sword employees can use to insist that their rights are respected by their employers. The shield comes in the form of the retaliation clause of Title VII, where employees can assert claims of adverse employment actions that arise from the utilization of rights under Title VII. (3)

   These two tools--reasonable accommodations and protection from retaliatory actions--and more specifically their concurrent use, came into question when the U.S. Court of Appeals for the Eighth Circuit considered Equal Employment Opportunity Commission v. North Memorial Health Care. (4) That case addressed the question of whether a request for an accommodation was truly an action that opposed an unlawful practice by an employer. (5) A job applicant at North Memorial Health Care ("North Memorial") requested a religious accommodation shortly after getting an offer of employment. (6) Shortly afterward, North Memorial rescinded the job offer, claiming it could not meet the applicant's request. (7) The Eighth Circuit ultimately concluded that an assertion of the right to an accommodation was not a protected activity under Title VII, even though the same type of activity is protected under other, similarly worded, statutes. (8) Therefore, the applicant's claim of retaliation, which only applies to protected activities, could not withstand summary judgment. (9)

   This Note considers the reasoning of the majority panel in finding requests for religious accommodation are not protected activities. Particularly, it examines analogous caselaw from the Eighth Circuit under similarly worded provisions in other statutes, as well as from other Federal Circuits throughout the United States. This Note concludes by describing the possible repercussions of this ruling considering the reasoning of the Eighth Circuit.

2. FACTS AND HOLDING

   Emily Sure-Ondara ("Appellant"), through an action initiated by the Equal Employment Opportunity Commission ("the EEOC"), filed for appeal with the U.S. Court of Appeals for the Eighth Circuit, asking the court to reconsider the lower court's ruling on her claim for retaliation on the basis of religious discrimination. (10) Appellant is a Seventh Day Adventist who alleged she was denied a position at North Memorial due to her request for religious accommodation. (11) As a Seventh Day Adventist, Appellant is required to take a day of rest on the Sabbath, which is generally recognized as falling on the seventh day of the week, Saturday. (12) In addition, a Seventh Day Adventist must prepare for the Sabbath the day before, meaning that the day of rest actually begins at sundown on Friday. (13) Respondent was North Memorial, a hospital system who rescinded Appellant's offer of employment. (14)

   Appellant, a registered nurse, applied to a residency program at North Memorial known as the "Advanced Beginner" program. (15) After initial screening, Appellant visited a hiring event where she interviewed for, and was subsequently offered a job with, North Memorial's Robbinsdale hospital. (16) During this interview, but before the offer, Appellant learned the unit she would work in required her to work eight-hour shifts every other weekend. (17) Appellant accepted a conditional job offer but later disclosed that she needed an accommodation in the form of not working Friday nights due to her religious beliefs. (18)

   In follow-ups from a representative of North Memorial's Human Resources Department, North Memorial clarified with Appellant that working on weekends was a requirement. (19) This was because the work schedule was arranged via a collectively bargained union agreement. (20) Appellant assured the representative that she would "make it work," either by finding a substitute for the shifts at issue or being present for her shift in cases of emergency. (21)

   North Memorial was less convinced; considerations were given to the difficulty of having other nurses consistently cover Appellant's shifts as well as the need for there to be an "emergency," as she said. (22) North Memorial subsequently informed Appellant of its inability to grant the accommodation, as it would be an undue hardship. (23) Appellant again stated that she would accept the position without accommodation but was told that North Memorial did not believe she would be able and willing to do so if given the position. (24)

   Appellant never began work at North Memorial. (25) Her conditional offer was rescinded on November 20, 2013, and follow-up applications for other positions with North Memorial were unsuccessful. (26) Appellant filed a charge of discrimination claim with the EEOC on December 13, 2013, which then filed suit against North Memorial on September 16, 2015 on her behalf. (27) The EEOC alleged a violation of 42 U.S.C. [section] 2000e-3(a), claiming that North Memorial had unlawfully retaliated against Appellant's request for accommodation by rescinding the offer of employment. (28) The district court focused on whether a request for accommodation was a "protected activity" under [section] 2000e-3(a), finding that the plain meaning of the statute did not incorporate a request for accommodation as a protected activity. (29) As such, the court granted summary judgment for North Memorial. (30)

   On appeal, a divided Eighth Circuit panel agreed with the judgment of the district court and affirmed the ruling. (31) The court held that in instances where a request for religious accommodation is made by an applicant, the request is denied on the grounds of undue hardship, and the applicant is subsequently not hired despite evidence that the undue hardship would no longer be present, there is no cause of action under the retaliation provision of Title VII and summary judgment is appropriate. (32)

3. LEGAL BACKGROUND

   Title VII of the Civil Rights Act is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin. (33) Title VII does this in a variety of ways and creates multiple causes of action for plaintiffs. Commonly, these actions fall under the category of either (1) discriminatory conduct of the employer based on race, color, religion, sex, or national origin, or (2) retaliatory conduct for the employee's opposition to unlawful employment practices. (34) Discriminatory conduct of the employer can include claims for disparate impact (35) and disparate treatment. (36) These claims are enforced by the EEOC. (37) This Section will address the general nature of protected activities under Title VII, as well as similar provisions found in other substantially similar laws.

   1. Burdens and Claims Under Title VII Generally

      A fundamental case in the general context of employment law that sets out the burdens of proof parties bear at trial is McDonnell Douglas Corp. v. Green. (38) McDonnell Douglas involved a claim of racial discrimination and retaliation for civil protests. (39) In this context, the United States Supreme Court determined that a certain order of the burdens of proof needed to be established in Title VII claims to properly meet the goals of the statute--known as the McDonnell Douglas Framework. (40) Under the McDonnell Douglas Framework, a plaintiff is required to make a prima facie case for its respective claims first and then, in response, the defendant has the burden to produce evidence of a nondiscriminatory reason for its adverse decision. (41) The analysis does not end there, however, since a mere burden to produce evidence would allow employers to evade litigation for thinly veiled discrimination. (42) Therefore, the plaintiff must have an opportunity to show that the stated reason of the employer was in fact pretextual. (43) It is within this analytical framework that the court in North Memorial considered the issue of Appellant's claim. (44) The Court of Appeals, while reviewing a ruling for summary judgment, has de novo jurisdiction and must draw all reasonable inferences in the non-moving party's favor. (45)

      Title VII requires employers to reasonably accommodate religious practices of employees except in cases where doing so would cause an undue hardship to the employer's business. (46) The most common religious practice requiring accommodation is observance of the Sabbath. (47) The United States Supreme Court ruled previously on this specific issue, finding that a law giving observers of the Sabbath an absolute right to refuse to work on the Sabbath is not beyond accommodation. (48) While there is no freestanding "failure to accommodate" action under Title VII, the Supreme Court has ruled that it is incorporated within an analysis of disparate treatment. (49) In order to bring a claim for disparate treatment, an applicant must show that an employer failed to hire the applicant--or otherwise took adverse action against the applicant--because of the applicant's religion or religious practice. (50) Employers are exempt from this standard with a showing that adherence to one's religious practice would create an "undue hardship" on the operation of its business. (51) Accommodations that would force an employer to violate a collectively bargained agreement are regularly found to cause undue hardship. (52)

      The other category, prohibition of retaliatory conduct, creates liability for employers who take adverse employment actions against employees engaging in protected opposition to discrimination by an employer. (53) An...