Religious Worker Protections Remain Unsettled in Post-'Abercrombie' Era

National Law Journal—Erin Mulvaney

A recent split panel ruling in the U.S. Court of Appeals for the Eighth Circuit narrowed the avenues a worker can take to fight alleged religious-protection violations. The case highlighted the unsettled landscape for companies, their employees and the courts.

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 Her job offer was rescinded, even after she said she would work without the religious accommodation.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.

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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.”

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