Dive Brief:

• The 8th U.S. Circuit Court of Appeals denied Monday a petition by the U.S. Equal Employment Opportunity Commission (EEOC) to revisit its ruling that a hospital did not unlawfully retaliate against a nurse by rescinding a conditional offer of employment (EEOC v. North Memorial Health Care, No: 17-2926 (8th Cir. Feb. 11, 2019)).
• In November 2018, a three-judge panel of the 8th Circuit affirmed a district court's decision in a 2-1 ruling that North Memorial Hospital's decision to rescind a conditional offer of employment was not retaliation. Emily Sure-Ondara, whose Seventh-Day Adventist beliefs conflicted with the position's requirement that employees work eight-hour night shifts every other weekend, did not disclose this information to North Memorial prior to her acceptance of the job, the court said. She later requested an accommodation while completing pre-employment paperwork. North Memorial denied the request and rescinded the offer, but an HR representative told Sure-Ondara, "North Memorial would be pleased to consider you for another position for which you are minimally qualified."
• Sure-Ondara applied to a position at a different hospital that accommodated her religious needs, and she also filed a charge with EEOC. EEOC said it found believed North Memorial discriminated against Sure-Ondara "when [it] retaliated against [her] for requesting a religious accommodation by rescinding the job offer in violation of Title VII." The 8th Circuit called the EEOC's position "sophistry," saying that if Sure-Ondara's beliefs had been timely disclosed, the hospital had a duty to accommodate the religious practice. "But North Memorial presented evidence that it is not feasible to hire an untrained Advanced Beginner into a team providing Hospice and Palliative Care to elderly patients if the applicant will not work the collectively bargained schedule." The court concluded: "There is no duty to accommodate an applicant or employee by hiring or transferring her into a position when she is unwilling or unable to perform one of its essential job functions."

Dive Insight:

The case bears similarities to others in which employees sued over denied religious accommodation requests, but the 8th Circuit made particular note of the process by which Sure-Ondara informed her employer of the need for an accommodation. It also noted Sure-Ondara's initial request for an accommodation "did not reflect, much less communicate, opposition or resistance to any North Memorial employment practice."

Other circuits have previously ruled that employees are not entitled to religious accommodations of their choosing. In the 11th Circuit, the court ruled a truck driver's transfer to a more flexible, albeit lower-paying route, in order to accommodate his need to attend Sunday church service did not constitute discrimination or retaliation on the part of the employer. The 10th Circuit found that an employee who was granted an exemption from mandatory overtime — instead of having it rescheduled — received an appropriate religious accommodation, even though he lost an opportunity to earn income.

The 8th Circuit noted in its ruling that "when an employee or applicant requests a religious accommodation, and the request is denied by an employer [...] that accommodates reasonable requests that do not cause 'undue hardship,' there is no basis for an opposition-clause retaliation claim" under Title VII's provision prohibiting unlawful retaliation. "Rather, the employee or applicant’s exclusive Title VII remedy is an unlawful disparate treatment or disparate impact claim under" Title VII's provision prohibiting intentional disparate treatment discrimination, the court said.