You may not have to grant religious accommodation, but you must have a conversation about it.

• Author: Hyman, Jon

The EEOC has sued Mercy Health St. Mary's, a hospital system in Michigan, for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

This is emerging as an important employment-law issue. Driven largely by complaints that being forced to be vaccinated against the coronavirus violated employees' religious beliefs, EEOC charges alleging discrimination on the basis of religion shot up more than 500% in fiscal year 2022. (See "EEOC charges exploded last year as pandemic eased and employees returned to work" on page 7.)

According to the EEOC's lawsuit (EEOC v. Trinity Health Michigan), the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient.

Instead, the EEOC alleges, it should have offered the applicant an opportunity to supplement his accommodation request to address any perceived deficiencies.

"Instead of rejecting the applicant's religious accommodation request outright, Mercy Health should have followed up with him if it had questions," said Dale Price, senior trial attorney in the EEOC's Detroit field office. "If it had questions, Mercy Health could have spoken with this individual before making a decision to determine the contours of his religious beliefs, rather than prematurely determining that his beliefs were not genuine."

In other words, the hospital should have engaged in the interactive process with the applicant. As explained by the EEOC in its technical guidance on workplace religious discrimination:

"Employer-employee cooperation and flexibility are key to the search for a reasonable accommodation. If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective. If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it." The law may not guarantee a religious (or disabled) employee a preferred accommodation or even any accommodation at all. However, it absolutely requires employers to engage employees seeking a reasonable accommodation in an interactive process to determine the appropriate accommodation (if any).

If an employer dismisses an individual's accommodation...