Saturday, October 19, 2019

Free to Retaliate?

More self-promotion. Just posted on SSRN:

Retaliation and Requesting Religion Accommodation


A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodation of religious practices or observances are generally not protected conduct within the scope of § 704, Title VII’s antiretaliation provision. The court reasoned that such a request fell did not fall within  the “opposition” clause of the provision since it did not “oppose” anything the employee could have reasonably believed was discriminatory.

This counterintuitive holding has the potential to frustrate Title VII’s command that employers reasonably accommodate believers by suggesting to employees that requests for accommodation are perilous.  It is true that Supreme Court precedent protects an employee when the accommodation must be granted because it is reasonable and not an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, prohibited under § 703, and so there is no need to invoke § 704.

But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court’s longstanding and extraordinarily narrow reading of the duty of accommodation under the statute.  And if the Eighth Circuit’s view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also take adverse employment actions against those foolish enough to ask for it.

This Article analyses the complicated interaction between the accommodation command of § 703 and the retaliation prohibition of § 704. In the process it rejects the “no harm, no foul” argument sometimes made, which is that denying employment or firing a worker who seeks an “unreasonable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on a false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.

The Article concludes that the Eighth Circuit is wrong in its reading of § 704 as applied to requests for accommodation. Further, it argues that, regardless of the correct reading of that provision, taking adverse action against a worker whose accommodation request was legitimately denied may violate § 703’s prohibition of status discrimination, a question not answered by the Eighth Circuit.    

The full article can be found here.


Employment Discrimination | Permalink


Thanks for posting this, Charlie! I look forward to reading it. Does the Eighth Circuit or you address how under the ADA, requesting an accommodation *is* protected opposition activity? It's still subject to the reasonable belief rule but it sometimes is protected. I talk about it in my recent-ish piece, Disabling ADA Retaliation Claims, which, frustratingly, SSRN never distributed (despite my requests) but can be found here.

Posted by: Nicole Porter | Oct 20, 2019 6:23:19 AM

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