Retaliation and Requesting Religious Accommodation.

• Author: Sullivan, Charles A.

ABSTRACT

A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodations of religious practices or observances are generally not protected conduct within the scope of [section] 704, Title VII's antiretaliation provision. The court reasoned that such a request does not fall within that provision's "opposition" clause because it did not "oppose" anything the employee could have reasonably believed was discriminatory.

This counterintuitive holding suggests to employees that accommodation requests are perilous, and thus threatens Title VII's goal of requiring employers to reasonably accommodate believers. It is true that Supreme Court precedent protects an employee when the employer must grant his or her accommodation because it is reasonable and does not cause an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, which is prohibited under [section] 703, and so there is no need to invoke [section] 704.

But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court's longstanding and extraordinarily narrow reading of the duty of accommodation under the statute. And if the Eighth Circuit's view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also to take adverse employment actions against those foolish enough to make one.

This Article analyzes the complicated interaction between [section] 703's accommodation command and [section] 704's retaliation prohibition. In the process, it rejects the "no harm, no foul" argument sometimes made: that denying employment to or firing a worker who seeks an "unreasonable accommodation" is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on the false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.

The Article concludes that the Eighth Circuit was wrong in its reading of [section] 704 as applied to requests for accommodation. Further, it

CONTENTS INTRODUCTION I. THE DUTY NOT TO DISCRIMINATE ON THE BASIS OF RELIGION II. THE GRUDGING DUTY OF RELIGIOUS ACCOMMODATION III. TITLE VII'S PROHIBITION OF RETALIATION IV. SECTION 703 TO THE RESCUE? CONCLUSION INTRODUCTION

Long before the Americans with Disabilities Act (1) ("ADA") required employers to accommodate disabilities, Title VII created exactly that duty for religion. (2) As amended in 1972, (3) [section] 701(j) defined religion (an undefined protected category in the original 1964 enactment) to "includfe] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate [such] religious observance or practice without undue hardship on the conduct of the employer's business." (4) Almost twenty years later, the ADA imposed a similar duty by prohibiting discrimination on the basis of disability and defining discrimination to include failing to make reasonable accommodations for qualified individuals with a disability. (5)

Title VII's duty of accommodation, however, has been far less robust than its ADA analog, (6) and certainly less robust than its statutory language suggests. Indeed, in Trans World Airlines, Inc. v. Hardison, (7) the Court read the "undue hardship" exception to largely swallow the accommodation rule. (8) The case involved a Saturday Sabbatarian who asked that a shift schedule requiring Saturday work be modified to accommodate his beliefs. (9) He proposed a number of alternatives, but the Court found each to involve an "undue hardship" under a remarkably deferential definition: " [t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship." (10) While this Article explores the Court's reasons for such an antitextual reading, (11) Hardisoiis restrictive approach to religious accommodations continues to govern Title VII cases. (12) Nevertheless, Title VII's duty is not without teeth. A number of decisions have held in the employee's favor. (13) Indeed, a recent case made headlines when a jury awarded a hotel dishwasher twenty-one million dollars in damages for being required to work on Sundays. (14) Although statutory caps will prevent most of that from ever being collected, (15) the verdict sends a message to employers to take requests for accommodation seriously.

Yet at roughly the same time the media was relaying that news, employers were receiving another, more nuanced message from the judiciary that seemed to free employers to retaliate against workers seeking accommodations. In EEOC v. North Memorial Health Care, (16) a divided panel of the Eighth Circuit considered whether a request for a religious accommodation was protected under [section] 704(a)'s prohibition of retaliation for "opposing" discrimination. (17) The majority rejected the claim that such requests are generally protected activity, essentially because such requests do not "oppose" anything. (18) Therefore, the hospital had not retaliated when it rescinded a conditional employment offer after concluding it could not grant a requested accommodation. (19)

Of course, the employer could have been correct or incorrect in its conclusion that it need not accommodate in the circumstances. If it were wrong, that is, if the requested accommodation was "reasonable" and not an "undue hardship," the employer would have violated [section] 703(a)'s bar on discrimination on the basis of religion (20) and there would be no need for a retaliation claim. If it were right, however, no [section] 703 status-discrimination claim would lie, but a retaliation claim under [section] 704 might be plausible, North Memorial notwithstanding. At first glance, this seems odd: if the applicant would not have worked without accommodation, she is being turned down for inability to perform the job, not for requesting accommodation. But that assumes that accommodations are sought only by those whose religion bars them from working without them, which both oversimplifies religious beliefs and misreads the statute. In North Memorial itself, the applicant had indicated she would have worked without the requested accommodation. (21) In such situations, a retaliation claim may be critical to furthering Congress's accommodation requirement.

To understand the problem, it is critical to appreciate that the typical way an employer learns of the need for an accommodation is by the employee requesting one (which is generally also true for ADA accommodations). (22) Nor is this unreasonable since inquiring into an employee's religious beliefs violates current privacy norms and raises the potential for discrimination claims, should an adverse action follow. Further, there are myriad religions with differing beliefs and practices (23) and different observances even among those who nominally share a particular faith. (24) Accordingly, to trigger any duty, the employee must normally alert her employer of her desire for an accommodation because her belief or observance conflicts with a workplace requirement. (25)

Given the centrality of such requests to the statutory scheme, it is scarcely surprising that requests for accommodation have been routinely held to be protected conduct under the ADA. (26) One paragraph of the relevant ADA antiretaliation provision tracks the language of Title VII, (27) and most courts have read it to protect requests for accommodation, despite the textual obstacle North Memorial raised. (28) But the issue of whether requests are protected conduct may be less important under the ADA than under Title VII since another paragraph of the ADA bars coercing, intimidating, threatening, or interfering with the exercises of ADA rights, (29) a provision which has no parallel in Title VII. It seems likely that retaliation for requesting an accommodation would interfere with the employee's ADA right to such an accommodation. (30) And there lies the problem. Section 704(a) of Title VII bars employer retaliation against an employee or applicant either "[(1)] because he has opposed any practice made an unlawful employment practice by this subchapter, or [(2)] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." (31)

According to North Memorial, that language does not embrace an applicant who is denied a job because she requested an accommodation for her religious observance. (32) First, the individual in question had not filed a charge with the Equal Employment Opportunity Commission ("EEOC") or otherwise fallen within the "participation" clause of the paragraph. Second, her request could not be viewed as "opposition" to any employment practice that was either illegal under Title VII or reasonably perceived to be illegal. Thus, a plain textual reading of the statute meant that employers are free to retaliate against those who request religious accommodations. (33)

An important qualification is necessary here. As discussed below, refusing to hire an applicant because of the need to make a required accommodation (that is, a reasonable accommodation that is not an undue hardship) would violate Title VII's prohibition of religious discrimination in [section] 703. (34) Thus, it will make little difference whether an applicant has a claim under [section] 703 or [section] 704 when an employer refuses to hire a person because it would be required to accommodate her.

However, where the request for accommodation could be legally denied, [section] 703 is arguably not implicated, and...