From  Meyers Roman Friedberg & Lewis A Minnesota federal court has ruled that an employee’s request for a religious accommodation did not qualify as protected activity to support the employee’s retaliation claim. EEOC v. North Memorial Health Care (D. Minn. 7/6/17) involves a hospital that withdrew a conditional job offer to a nurse after she disclosed that she was a Seventh Day Adventist and could not work Friday nights because of her religion. As an accommodation, the employee offered to find a substitute for Fridays on which she was scheduled, and that she would work if she could not find one. The hospital denied her request, and, ultimately, the EEOC filed suit on her behalf claiming that the hospital retaliated against her because of her religious accommodation request. In dismissing the EEOC’s claim, the court applied strictly interpreted Title VII’s retaliation clause.

Under Title VII, an employee engages in protected activity when she either (1)”oppose[s] any practice made an unlawful employment practice by [Title VII]” or “ma[kes] a charge, testifie[s], assist[s], or participate[s] in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a). …

Applying the plain language of the statute, the court concludes that requesting a religious accommodation is not a protected activity. Under the opposition clause, a plaintiff must communicate her opposition to a practice that she believes, in good faith, is unlawful. … [M]erely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation. …

Neither is [the employee]’s accommodation request protected activity under the participation clause. There is no evidence that [she] “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” prior to her termination.

While I applaud this court’s strict reading of the retaliation statute, employers should not view this lone district court case as a mandate empowering them to deny accommodation requests free from risk. The law on this issue is far from settled. Instead of using this case as a justification to deny an accommodation request, employers should view it as a reason to have an open dialogue with a religious employee requesting an accommodation. How should this case have played out?

• Employer: “Nurses must work every other Friday night.”
• Employee: “My religion prevents me from working Friday nights.”
• Employer: “Then you cannot work here.”
• Employee: “What if I find a substitute for the Fridays that I am scheduled, and I’ll work any Friday night shifts for which I can’t find one.”
• Employer: “Let’s give that a try.”