U.S. Supreme Court building in Washington, D.C. Photo: Diego M. Radzinschi/ALM

Emily Sure-Ondara had secured a position at North Memorial Health Care until she explained to the Minnesota hospital that as a Seventh-day Adventist she would observe the sabbath sundown on Friday to sundown on Saturday.

The registered nurse's request to not work weekends clashed with a requirement—negotiated by the nurses' union and the hospital—that employees work weekends every other week. Her job offer was rescinded, even after she said she would work without the religious accommodation.

A federal appeals court panel this month, ruling for North Memorial, upheld the dismissal of a retaliation lawsuit that the U.S. Equal Employment Opportunity Commission filed on Sure-Ondara's behalf in 2015.

The split panel ruling in the U.S. Court of Appeals for the Eighth Circuit, which covers a broad swath of the midwest, narrowed the avenues a worker can take to fight alleged religious-protection violations.

The case also highlights the unsettled landscape for companies, their employees and the courts, often forced to reckon with this slice of Title VII of the Civil Rights Act that provides protections for religious beliefs. Federal courts remain torn over the scope of religious accommodations since a landmark Supreme Court ruling three years ago that was heralded as a win for employee rights.

“The decision shows there is more work to be done,” Daniel Mach, director of the American Civil Liberties Union Program on Freedom of Religion and Belief, said of the recent ruling.

The three-judge Eighth Circuit panel, which included Trump-appointed judges ruling on opposing sides of the case, found the hospital's response to Sure-Ondara's request for an accommodation didn't amount to retaliation.

The company's attorneys at Fredrikson & Byron did not respond to request for comment. The EEOC declined to comment on whether the agency planned to further press its appeal. A spokesperson for the hospital said in a statement: “North Memorial Health has and expects to continue its established practice of granting requests for religious accommodation on a case by case basis.”

Advocates and religious organizations had predicted wide consequences of a ruling that went against Sure-Ondara and the EEOC. A friend-of-the-court brief said a ruling for the hospital could “eliminate the rights of employees who would seek accommodations. And avoiding that result is the whole point of the retaliation provision.”

Open Questions After 'Abercrombie'

The last major U.S. Supreme Court ruling addressing religious accommodation came in 2015 in the case EEOC v. Abercrombie & Fitch. The court found the clothing retailer discriminated against a Muslim woman when it did not hire her because the hijab she wore clashed with the company's “look” policy. Workers rights advocates hailed the ruling as a victory for religious beliefs. But companies still face a balancing act.

“The Supreme Court has made clear that employers need to take their Title VII obligations seriously,” Mach of the ACLU said. “The Abercrombie decision sent a broader message of the importance of providing reasonable religious accommodations in the workplace, but the outcomes, including this North Memorial decision, have been a mixed bag.”

The Abercrombie decision, the recent Eighth Circuit ruling and other cases in appeals courts reveal the complexities of religious accommodation cases. Accommodating a worker's religious beliefs pose unique challenges beyond protected employment categories such as race and gender.

“The fundamental aspect most employment laws address is to say that an employer should treat employees the same. That's true for religion, as well, but it goes one step further,” said Todd McFarland, associate general counsel to the General Conference of Seventh-day Adventists, which filed an amicus brief in support of Sure-Ondara. “You have to do something different for them and give them preferential treatment. Courts have struggled with that.”

McFarland said this clash between business interests and workers' religious rights is likely to continue. “We will see more defendants and circuits wrestling with this. This is not going away.”

In the years since Abercrombie, religious accommodation lawsuits filed against companies have seen a steady uptick. The EEOC has tracked a gradual increase in these cases in recent decades.

In the last few years, the agency has defended workers in lawsuits that confront employers over requests for religious days of rest and myriad reasons that include grooming policies, wardrobe and vaccinations.

Employment attorneys had predicted the Abercrombie decision would not provide definitive guidance on how to settle religious accommodation disputes. This proved prescient.

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In the Fourth Circuit, a worker prevailed in a 2017 ruling when he claimed a biometric hand scanner would be akin to the Book of Revelation's “Mark of the Devil.” The Eleventh Circuit ruled against a Walgreens worker who wanted his schedule to accommodate the sabbath. His attorneys asked the Supreme Court to take up that case on appeal, in a petition noting deep divisions in this area.

Each case raises a specific question under the religious accommodation umbrella. The Eighth Circuit majority opinion focused on whether Sure-Ondara's request for an accommodation amounted to protected activity.

The court found that “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” It also said, however, that a Title VII retaliation claim could be asserted in other contexts involving requests.

Paul Mollica, counsel at Outten & Golden in Chicago, called the court's ruling a “wooden” interpretation.

“The majority opinion takes an unrealistically narrow view on how employees and employers operate,” he said.

Mollica said there were parallels to the Abercrombie ruling, in that the employer appeared to withhold or rescind a job offer because of “anticipated trouble.” In Abercrombie, the company said it did not know the headscarf worn by the applicant was based on a religious belief. The high court was not convinced and held the company liable. In Sure-Ondara's case, Mollica said it should have been clear she was entitled to an accommodation, even if she didn't “utter the magic words.”

Leonard Steven Grasz appeared last year for his confirmation hearing. Credit: YouTube.

The three-judge panel saw two Trump-appointed judges on opposites sides of the debate with Judge Ralph Erickson in the majority and Judge Leonard Steven Grasz in the dissent. Grasz said Sure-Ondara's accommodation should have been considered protected activity.

“Common sense dictates that requesting a religious accommodation in most circumstances communicates support for the grant of the request and opposition to its denial,” Grasz wrote. “In other words, the request itself conveys opposition to the employer's failure to accommodate the applicant's (or employee's) religion.”

Setting “too high a standard for opposition,” Grasz said, “could have the unintended effect of forcing requesters to take a confrontational approach in order to be afforded Title VII's protections against retaliation.”

Greg Grisham, of counsel for Fisher Phillips in Memphis, said in a recent client advisory that while the Eighth Circuit decision provides fewer options for workers, it does not create any clear lane for companies to deny religious accommodations.

“The decision does not impact your Title VII obligation to accommodate applicants or employees absent undue hardship when your policies or practices create a conflict with an employee's or applicant's religious belief or practice,” Grisham said.

 

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