A panel of the U.S. Court of Appeals for the Eighth Circuit ruled 2-1 this week that an employer's withdrawal of a job offer to an nurse who had requested a religious accommodation was not tantamount to retaliation.

I agree with the outcome, but I'm having a tough time with the court's reasoning. 

Here are the facts. The employer, North Memorial Health Care of Minnesota, offered a training program for registered nurses who had not previously worked in hospital settings. The trainee-nurses were under a union contract that required work on weekends twice a month. The nurse, a Seventh-Day Adventist, applied for and was offered a position. After she received the offer, she told the hospital for the first time that she would not be able to work on the Sabbath (sundown Friday to sundown Saturday). A Human Resources representative engaged in the "interactive process" with her, and the nurse offered to try to recruit a Sabbath substitute. If that was unsuccessful, she said, she would work "if there was an emergency, or life or death situation."

The hospital ultimately withdrew the offer of employment, allegedly based on two concerns: (1) it did not believe that the nurse would be able to consistently find substitutes on Fridays and Saturdays, and (2) it feared that the nurse would simply call out on the "non-emergency" Sabbaths that she was scheduled to work and unable to get a sub.

The Equal Employment Opportunity Commission filed suit on the nurse's behalf, claiming retaliation rather than failure to accommodate. Interesting choice on their part. The retaliation claim was based on the fact that the nurse offered to work without an accommodation yet still lost her job offer. (She also applied for other positions at the hospital that didn't require weekend work but was not hired.)

A federal district court judge granted summary judgment to the employer. On appeal, the Eighth Circuit affirmed. According to the Eighth Circuit panel majority, the nurse's religious accommodation request was not legally protected "opposition" activity under Title VII. Without legally protected activity, there is no retaliation claim.

Title VII protects two types of activity: "participation" (for example, filing an EEOC charge, or testifying truthfully) and "opposition." "Participation" was not at issue in this case, so the nurse's only possible protected activity could have been "oppositional" activity.

According to the majority, "opposition" means just what it says. An employee "opposes" an allegedly discriminatory policy or practice of the employer. For example, I complain that I was denied a promotion because of my age. Or I refuse to comply with a directive from my supervisor to fire an employee because of his race. Or I threaten to file a charge because my company's recruiting software is screening out too many women and minorities. Or I stick up for a co-worker who says that the company discriminates against white males.

The Eighth Circuit panel majority said that a request for religious accommodation is not "opposition" because it isn't "opposing" anything. But it's still legally protected activity under Title VII.

This has had my mind tied up in knots for the past 36 hours.

The EEOC takes the position that a request for reasonable accommodation of disability or religion is protected "oppositional" activity.

I have to agree with the EEOC (and the dissenting Eighth Circuit judge) on that point. If the request for accommodation is legally protected activity, then theoretically an employer could be liable for retaliation against an employee who makes an accommodation request.

That said, I agree with the outcome of this case. I would have found in the hospital's favor because I don't think the nurse's offer to come to work if there were an "emergency, or life or death situation" is a genuine offer to forgo reasonable accommodation. It sounds to me as if she was leaving herself a huge loophole. In my opinion, that puts the case back into the old garden-variety "failure to accommodate" mode, a claim that the EEOC chose not to pursue.

More generally, I agree with the majority that we need to be very careful to avoid conflating failure to make reasonable accommodation, on the one hand, with retaliation, on the other. They are two separate concepts, and should be two separate legal claims.

Let's start with an obvious example. You apply for a job and ask to have the Sabbath off because you're a Seventh-Day Adventist. I say, "No, we really need you here on Friday nights. I'm sorry. We can't accommodate that. All the best to you in your future endeavors."

I have refused to accommodate you, and you can sue me for that. But there is no indication that I intended to penalize you for making the request. So you shouldn't have a valid claim for retaliation.

But let's say that after I decline to accommodate you, I go to my local SHRM luncheon and warn all of my HR buddies to steer clear of you because you can't work on the Sabbath. Now I've retaliated against you -- I'm making it harder for you to find a job with other employers, and I have no legitimate reason for doing so.

And I can see a scenario in which a failure to accommodate could be a form of retaliation. Let's say you have a pending EEOC charge against the company, and then you ask me for a reasonable accommodation. I say no to your requested accommodation because I'm mad at you for filing that EEOC charge. In that case, my refusal of your requested accommodation would in itself be retaliatory.

In short, the line between "failure to accommodate" and "retaliation" can be murky, and there is some overlap. But a failure to accommodate, with nothing more, should not give rise to a retaliation claim. Retaliation should come into the picture only if there is evidence of something in addition to the failure to accommodate that indicates a retaliatory motive on the part of the employer.

When I'm on the Supreme Court, that is what I'll say, by golly. 

Image Credit: From flickr, Creative Commons license, by Steven Depolo.