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EEOC v. North Memorial Health Care, No. 17-2926 (8th Cir. Nov. 13, 2018)

In a contentious 2-1 opinion, the Eighth Circuit holds that a job applicant who requests a religious accommodation - here, not to work Saturdays - is not engaged in a "protected activity" under the opposition clause of Title VII's retaliation provision. 

EEOC v. North Memorial Health Care, No. 17-2926 (8th Cir. Nov. 13, 2018): The EEOC filed suit alleging that a hospital violated 42 U.S.C. § 2000e-3(a), the provision prohibiting unlawful retaliation, because it withdrew a conditional offer of employment to charging party (Ms. Sure-Ondara) "in retaliation for her request for an accommodation under Title VII."

The accommodation request was, as a Seventh-day Adventist, to not work Friday nights: "I need to be accommodated because of my religious beliefs, that I need Friday nights off for Sabbath rest. I don't work Fridays." She offered to "make it work," either by "finding a substitute for her Friday night shift or [coming] in herself in an emergency or life-or-death situation."

Because the collective bargaining agreement required unconditional availability on weekends, the request was denied, although the hospital told the charging party that she could apply for other positions as to which there was no such conflict. (The hospital's policy, according to the record, generally was to consider accommodation requests on a case-by-case basis.) 

The EEOC filed suit on her behalf. The District court granted summary judgment, holding that the hospital had not violated § 2000e-3(a) because it did not "discriminate against [Sure-Ondara] because [she] has opposed any practice made an unlawful employment practice." The EEOC, joined by amici the ACLU and religious organizations appealed.

The Eighth Circuit affirms in a split opinion. The panel majority notes that while "Sure-Ondara's charge of discrimination included a claim of disparate treatment discrimination, ... the EEOC's complaint did not allege a disparate treatment violation of § 2000e-2(a)(1)," and instead alleged only retaliation.

The panel majority commences its analysis of this claim by quoting the standard under Crawford v. Metro. Gov't of Nashville and Davidson Cty., 555 U.S. 271, 276 (2009): "When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity."

And there the majority halts, noting that such communication was supposedly not what the charging party did; rather, she requested a religious accommodation of Friday nights off. "Sure-Ondara did not complain that North Memorial unlawfully refused to accommodate." Holds the majority, "[c]onsistent with the plain meaning of the word 'oppose,' the initial request for a religious accommodation simply does not 'implicitly' constitute opposition to the ultimate denial of the requested accommodation."

The panel majority purports to distinguish this situation with the seemingly comparable one under the ADA, where an employee requests a reasonable accommodation for a disability. "If an employer denies a good faith request for a disability accommodation because the employee does not have a qualifying disability and fires the employee for making the request, at a minimum the employee has an ADA retaliation claim...." But even if an accommodation request is "protected activity," the panel majority holds, that "does not mean it is always 'oppositional' activity."

At bottom, the panel majority appears to fault the EEOC for mispleading the claim under the wrong section:

"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). Rather, the employee or applicant's exclusive Title VII remedy is an unlawful disparate treatment or disparate impact claim under § 2000e-2(a)(1)."

The panel majority nevertheless hints that the claim would be resolved the same way, even under the disparate treatment rubric: "There is no duty to accommodate an applicant or employee by hiring or transferring her into a position when she is unwilling or unable to perform one of its essential job functions."

To the dissent (signed by Judge Grasz), the difference between requesting an accommodation and opposing a refusal to accommodate is a wooden one. The dissent faults the majority for giving Crawford an unduly narrow reading. "The Supreme Court in Crawford adopted an expansive view of the opposition clause, such that an individual does not need to directly or overtly communicate opposition to an unlawful employment practice - conduct or communication that reveals opposition, even implicitly, is enough."

Ultimately, the dissent would find significant that the charging party attempted to accept the job without accommodation, but was denied anyway. The evidence of retaliation was "that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation."

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