Retaliation and Requesting Religious Accommodation

Case Western Reserve Law Review Volume 70 Issue 2 Article 11 2019 Retaliation and Requesting Religious Accommodation Charles A. Sullivan Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Charles A. Sullivan, Retaliation and Requesting Religious Accommodation, 70 Case W. Res. L. Rev. 381 (2019) Available at: https://scholarlycommons.law.case.edu/caselrev/vol70/iss2/11 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 70·Issue 2·2019 Retaliation and Requesting Religious Accommodation Charles A. Sullivan† Abstract A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodations 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 does not fall within that provision’s “opposition” clause because it did not “oppose” anything the employee could have reasonably believed was discriminatory. This counterintuitive holding suggests to employees that accom– modation requests are perilous, and thus threatens Title VII’s goal of requiring employers to reasonably accommodate believers. It is true that Supreme Court precedent protects an employee when the employer must grant his or her accommodation because it is reasonable and does not cause an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, which is 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 accom– modation 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 to take adverse employment actions against those foolish enough to make one. This Article analyzes the complicated interaction between § 703’s accommodation command and § 704’s retaliation prohibition. In the process, it rejects the “no harm, no foul” argument sometimes made: that denying employment to or firing a worker who seeks an “unreas– onable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on the 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 encour– ages (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 was wrong in its reading of § 704 as applied to requests for accommodation. Further, it † Professor of Law, Seton Hall Law School. B.A. Siena College, 1965; LL.B. Harvard Law School, 1968. My thanks to Kamille E. Perry, Seton Hall class of 2021, for superb research assistance. 381 Case Western Reserve Law Review·Volume 70·Issue 2·2019 Retaliation and Requesting Religious Accommodation 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 discrim– ination, a question not answered by the Eighth Circuit. Contents Introduction .................................................................................. 382 I. The Duty Not to Discriminate on the Basis of Religion .......... 389 II. The Grudging Duty of Religious Accommodation ................... 394 III. Title VII’s Prohibition of Retaliation .................................... 400 IV. Section 703 to the Rescue?...................................................... 407 Conclusion ...................................................................................... 416 Introduction Long before the Americans with Disabilities Act1 (“ADA”) required employers to accommodate disabilities, Title VII created exactly that duty for religion.2 As amended in 1972,3 § 701(j) defined religion (an undefined protected category in the original 1964 enactment) to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate [such] religious observance or practice without undue hardship on the conduct of the employer’s business.”4 Almost twenty 1. 42 U.S.C. § 12112(b)(5) (2012). 2. Rather than being framed as a separate duty, the reasonable-accom– modation requirement was “incorporated into the statute, somewhat awk– wardly, in the definition of religion.” See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n.1 (1986). 3. Equal Employment Opportunity Act of 1964, Pub. L. No. 92-261, 86 Stat. 103 (1972). 4. 42 U.S.C. § 2000e(j) (2012); see also 29 C.F.R. § 1605.2 (2018). The amendment was largely a response to the Supreme Court affirming the Sixth Circuit’s rejection of an Equal Employment Opportunity Commission (“EEOC”) regulation requiring a religious-accommodation duty under Title VII. See Dewey v. Reynolds Metals Co., 300 F. Supp. 709, 714 (W.D. Mich. 1969), rev’d, 429 F.2d 324, 334 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689 (1971) (per curiam). The section’s legislative history demonstrates a desire on the part of its Senate sponsor, Senator Jennings Randolph (himself a Seventh-Day Baptist), to reduce the incidences of believers’ forced choices between faith and employment. See Roberto L. Corrada, Toward an Integrated Disparate Treatment and Accommodation Framework for Title VII Religion Cases, 77 U. Cin. L. Rev. 1411, 1427–31 (2009); Peter Zablotsky, After the Fall: The Employer’s Duty to Accommodate Employee Religious Practices 382 Case Western Reserve Law Review·Volume 70·Issue 2·2019 Retaliation and Requesting Religious Accommodation years later, the ADA imposed a similar duty by prohibiting discrim– ination on the basis of disability and defining discrimination to include failing to make reasonable accommodations for qualified individuals with a disability.5 Title VII’s duty of accommodation, however, has been far less robust than its ADA analog,6 and certainly less robust than its statutory language suggests. Indeed, in Trans World Airlines, Inc. v. Hardison,7 the Court read the “undue hardship” exception to largely swallow the accommodation rule.8 The case involved a Saturday Sabbatarian who asked that a shift schedule requiring Saturday work (...truncated)