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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. For several weeks, we have been updating the series “Religious Accommodation Requirements” with fresh, verifiable, and credible content. Confident that we have enlightened and educated you on diverse key issues worth understanding, especially as it concerns religious accommodation, we have reached the climax and the end of this series. Accordingly, to conclude in style, this blog, which is also Part XI of this series, covers “Additional Key Discrimination and Religious Accommodation Issues” that may indiscriminately affect employers and employees in matters concerning religious accommodation.

Without further ado, here is an overview of these issues.

Reverse Religious Discrimination

Sometimes, applicants or employees may bring claims that they were discriminated against for objecting or failing to observe their employers’ religious practices and/or beliefs. This is known as reverse religious discrimination and claims brought under it are recognized by Title VII. However, in order to have a viable reverse religious discrimination claim, an employee or applicant must demonstrate that:

  • The employee or applicant was subjected to an adverse employment action by the employer.
  • The employee or applicant was, at the time of termination, qualified to carry out the job’s essential functions.
  • As supported by additional evidence, the objection or failure of the applicant or employee to follow, observe, or adopt the employer’s religious beliefs was the basis under which the employee was discriminated against and, subsequently, subjected to adverse action by the employer.

Under these kinds of claims, apart from the prospect that the employee or applicant objected to observing the employer’s preferred religious practices may be placed under protected class, Title VII does not require the plaintiff to be a member of a protected class. Accordingly, the McDonnell-Douglas standard that is typically utilized by courts to adjust discrimination claims at the stage of summary judgment would be used by a court to evaluate such a reverse religious discrimination claim.

Adverse Action Requirements

In 2015 the U.S. Supreme Court provided a landmark decision in a case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 135 S. Ct. 2028, 2032–33 (2015). However, referring to an adverse employment action-free denial of religious accommodation claims, some courts have held that the freestanding failure to accommodate claims has been precluded by the Supreme Court’s decision. In another case, EEOC v. JBS USA, LLC, EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135, 1184–88 (D. Colo. 2018), the “question whether the practice and pattern resulting in an adverse action were motivated by the need for accommodation” and the “adverse action requirement” were addressed and recognized, respectively, in decision after trial.

Protected Oppositional Activities

Under this issue, the key question concerns whether religious accommodation requests can be viewed as protected oppositional activities under which retaliation claims under Title VII are supported. In a 2018 case, EEOC v. North Memorial Health Care, 908 F.3d 1098, 1103 (8th Cir. 2018), it was held by the Eighth Circuit that, as required to support a retaliation claim under Title VII, a religious accommodation request that is simply made by a plaintiff did not constitute “oppositional” activity. The court held that for purposes of a discrimination claim, a “protected activity” may not always be an “oppositional activity” under which a viable retaliation claim could be supported. For this reason, the court based its decision on the plaintiff’s religious accommodation request when granting the employer its summary judgment regarding retaliation claims brought forth by the plaintiff.

We are firmly rooted as the authoritative force in Employment and Labor Law, particularly in New York and New Jersey. Therefore, the end of this series only ushers in more exciting and hot series that not only aim to inform, enlighten, and educate but also provide you with tips and ideas on how to stay ahead of your game when it comes to employment and labor law.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.