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Applicant's Religious Accommodation Request Not Protected Activity

By George Khoury, Esq. on December 05, 2018 | Last updated on March 21, 2019

A recent Eighth Circuit decision made a rather technical distinction when it came to a recent Title VII retaliation claim: a job applicant's request for a religious accommodation is not protected activity for the purposes of a Title VII retaliation claim.

Fortunately, the Eighth Circuit limited its decision to prospective employees and to facts evidencing that the request itself did not communicate "opposition" conduct. And though there was a rather well thought out dissent, and it was the EEOC prosecuting the case, the panel of judges upheld the dismissal of the clear contentious case upon some questionable analysis.

Pre-Employment Religious Accommodation Request

In the case at hand, a nurse had applied for and been granted a conditional job offer at a hospital. While working out those conditions, she learned that she would be required to work every other weekend as part of the union's collective bargaining agreement. When she learned this, she made a request for a religious accommodation because her faith says Fridays are a day of rest and she should not work.

After the employer considered and denied her request for accommodation, it rescinded the job offer. In the process, she had explained that if the request was not possible, she would still like to take the job. When asked what she would do about Fridays, she explained that she would try to trade shifts when possible, and would come in if it was an emergency. Nevertheless, the job offer was still rescinded.

Shortly thereafter, the plaintiff filed a claim with the EEOC, which then filed a lawsuit alleging retaliation. Unfortunately for the plaintiff and EEOC, the district court ruled, and the appellate court agreed that Title VII does not list requests for reasonable accommodation as "protected activity" for purposes of anti-retaliation. Rather, technically, if a request is denied for discriminatory reasons, a plaintiff has a claim for disparate impact or disparate treatment, not retaliation. Only after a complaint has been made, or some sort of opposition to the unlawful (or believed to be unlawful) denial, such as a verbal protest even, can a retaliation claim materialize.

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