Employment Law

California Appellate Panel: No Fees, Costs for Nonfrivolous FEHA Cases

Why it matters

An award to a prevailing party for fees and costs after the losing party rejected a Section 998 pretrial settlement offer does not apply to nonfrivolous cases filed under the Fair Employment and Housing Act (FEHA), a California appellate panel has ruled. A pair of restaurant servers were terminated by the Hotel Bel-Air after being involved in an altercation at work. One of the workers, Felix Huerta, then sued his former employer under a variety of legal theories. Most of his claims were dismissed prior to trial, and a jury returned a verdict in favor of the defendant on Huerta’s FEHA causes of action for a hostile work environment, discrimination, and failure to prevent harassment or discrimination. The trial court found the action was not frivolous and denied the employer’s request for attorney’s fees and costs under FEHA. However, the court did award the defendant $50,000 based on Huerta’s rejection of the defendant’s Section 998 pretrial settlement offer. On appeal, the panel affirmed the judgment and noted that effective January 1, Section 998 will have no application to costs and attorney and expert witness fees in a FEHA action unless the lawsuit is found to be “frivolous, unreasonable or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” For litigation that predates the application of this amendment, the court held that Section 998 does not apply to nonfrivolous FEHA actions and reversed the order awarding the employer $50,000.

Detailed discussion

On the evening of December 21, 2013, the restaurant staff at one of the Hotel Bel-Air’s restaurants was preparing for the next shift after the guests had departed. One of the waiters, Atanas Kolev, became angry with another waiter, Felix Huerta, believing that Huerta was shirking his duties. The two men exchanged words, with Kolev putting his hands on Huerta.

The parties disagreed about the words exchanged and their mutual history. Huerta claimed that the altercation was only the most recent example of Kolev’s racial harassment, although when he reported the incident he did not mention that Kolev used racial epithets or had used them in the past. Both men were terminated for violating the employer’s code of conduct.

Huerta then filed suit, essentially alleging racial discrimination and harassment. Several claims were dismissed prior to trial. Shortly before the trial began, the defendant served Huerta with a Code of Civil Procedure Section 998 settlement offer in the amount of $375,000, with the litigants to bear their own attorney fees, costs and litigation expenses. The plaintiff did not accept the offer and countered with his own Section 998 demand of $1.55 million.

Trial began on Huerta’s claims under the Fair Employment and Housing Act (FEHA) for retaliation, harassment, discrimination, and failure to prevent harassment or discrimination. The trial court granted a motion for nonsuit on the retaliation claim, and the jury returned a verdict in the defendant’s favor on the remaining causes of action.

As the prevailing party in a FEHA case, the defendant requested costs, expert witness fees and attorneys’ fees pursuant to Section 12965(b). The defendant sought the same costs and fees pursuant to Section 998.

Determining that the plaintiff’s action was not frivolous, the trial court denied the motion with respect to Section 12965(b). As for Section 998, the court said the defendant was not entitled to postoffer attorney fees because the action was not frivolous, but did award the defendant postoffer ordinary costs and expert witness fees. Based on the plaintiff’s economic circumstances, the court reduced the award to $50,000.

Huerta appealed. The California appellate panel first affirmed the jury’s verdict and that nonsuit was properly granted on the plaintiff’s retaliation cause of action, before considering whether the Section 998 award was proper.

Since the trial court granted the award, the legal landscape has expanded to include Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., where a fellow appellate panel held that Section 998 does not apply in nonfrivolous actions, the court noted.

Prior to Arave, it was unsettled whether Section 998 applied in nonfrivolous FEHA actions when a plaintiff refused a defendant’s reasonable statutory settlement offer but failed to achieve a better result.

“In 2018, however, our colleagues in Division Two of the Fourth Appellate District analyzed [prior cases], surveyed the development of the law, and concluded there is no statutory authority to award section 998 postoffer fees and costs in a nonfrivolous FEHA action,” the panel wrote.

Arave reasoned as follows: Section 12965(b) is an express exception to section 1032, subdivision (b). Section 998 ‘operates only as an adjustment to cost awards under Section 1032(b), [so] it follows that Section 12965(b) overrides Section 998(c) … [I]f a defendant may not obtain an award of costs under Section 1032(b) [because] plaintiff’s claims are nonfrivolous, the trial court may not augment an award of costs by awarding expert witness fees under Section 998(c),’” the court said.

“We find Arave’s logic unassailable,” the panel added. “We hold that the general policies behind section 998 must yield to the specific policies concerning costs and attorney and expert witness fee awards in nonfrivolous FEHA actions.”

In addition, the state legislature amended Section 12965(b) (effective January 1, 2019) to read: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”

The legislature expressly pegged Section 998 to Section 1032, the panel wrote. “In non-FEHA actions, a ‘defendant is entitled under section 998 to those costs incurred after the settlement offer to which a prevailing party would be entitled under section 1032.’ In non-FEHA actions, where the special prevailing party cost statute is not an express exception to section 1032, a defendant is also entitled under section 998 to its postoffer costs. But in nonfrivolous FEHA cases, the prevailing party cost provisions are express exceptions to section 1032. It follows, then, that section 998 does not apply in nonfrivolous FEHA actions.”

Therefore, “for cases that predate the amendment to section 12965(b), we see no reason to differentiate between the treatment of ordinary costs, attorney fees and expert witness fees in nonfrivolous FEHA actions,” the court concluded. “The language in section 12965(b) indicates all three categories are subject to the same rules.”

The panel reversed the trial court order awarding the defendant costs and expert witness fees pursuant to section 998. The court also emphasized that “nothing in our opinion is intended to apply to FEHA actions deemed ‘frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.’ In those cases, the trial court retains discretion to award fees and costs pursuant to section 12965(b).”

To read the opinion in Huerta v. Kava Holdings, Inc., click here.

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Law Firm’s Arbitration Provision Unconscionable

Why it matters

A California appellate panel determined that a law firm’s arbitration agreement with a partner was unconscionable, reversing a trial court’s grant of a motion to compel arbitration in an employment dispute. An experienced litigator and patent practitioner, Constance Ramos, was hired by Winston & Strawn as a partner. She sued after a few years of employment, claiming that she was denied recognition for her work and excluded from opportunities for career advancement, asserting claims of discrimination, retaliation and wrongful termination. The law firm moved to compel arbitration, and a trial court granted the motion. But the appellate panel reversed. The arbitration provision in the employment agreement signed by Ramos failed to meet the standard of Armendariz v. Foundation Health Psychcare Services, Inc., the court said, and was unconscionable. Further, the taint of illegality could not be removed by severing the unlawful provisions without altering the nature of the parties’ agreement, leading the panel to void the entire agreement and send the case back to Superior Court.

Detailed discussion

Constance Ramos was hired as an income partner at Winston & Strawn in May 2014. An experienced litigator and patent practitioner with a doctorate in biophysics, Ramos signed a copy of the firm’s partnership agreement when she began work. Section 13.11 of the agreement was a mandatory arbitration clause, which outlined procedures for selection of the arbitration panel, set the venue for arbitration in Chicago and provided that each party would bear its own fees.

The arbitration provision also stated that “Except to the extent necessary to enter judgment on any arbitral award, all aspects of the arbitration shall be maintained by the parties and the arbitrators in strict confidence,” and “The panel of arbitrators shall have no authority to add to, detract from or otherwise modify this Agreement nor will the panel of arbitrators have authority to substitute its judgment for, or otherwise override the determinations of, the Partnership, or the Executive Committee or officers authorized to act in its behalf, with respect to any determination made or action committed to by such parties, unless such action or determination violates a provision of this Agreement.”

Ramos felt firm leaders showed little interest in her business development or her efforts to contribute to the firm’s intellectual property work. When the two partners that joined the firm with Ramos left in January 2016, she was told that Winston wanted her to leave too. The firm significantly reduced her salary in spite of an almost complete victory on an active litigation matter and the fact that she was the highest-billing income partner in the office in 2016.

While Ramos continued to generate business, she was left out of pitch meetings and left off cases in favor of less-qualified, less-experienced male attorneys, she alleged. She also complained repeatedly to firm management. In 2017, her salary was cut again. She submitted a letter of resignation under protest and filed suit against the law firm.

The firm moved to compel arbitration. Not only had Ramos signed the partnership agreement including the arbitration provision, but she was a “partner” and not an “employee,” so the requirements for arbitration clauses in mandatory employment agreements as set forth in Armendariz v. Foundation Health Psychcare Services, Inc. did not apply, the defendant argued.

Over Ramos’ objections that she was an “employee” for purposes of the antidiscrimination protections afforded by state law, the trial court granted the motion to compel arbitration. However, the court did find that the provisions related to venue and cost sharing were unconscionable and severed them from the agreement.

The plaintiff appealed, contending that the arbitration agreement was both procedurally and substantively unconscionable. The appellate panel agreed.

As an initial matter, the court found that the arbitration agreement encompassed the claims made in Ramos’ complaint. While none of her claims alleged a violation of any term of the partnership agreement, her allegation that her compensation was improperly reduced by 56 percent “arguably relates to the provisions of the Partnership Agreement regarding compensation for income partners,” the court said. “It also relates to the partnership in that Ramos was an income partner and alleges she was denied compensation and opportunities by other partners of the firm.”

“Thus, the controversy between the parties appears to ‘touch matters’ covered by the Partnership Agreement,” the panel wrote. “Because her statutory claims have their ‘roots in the relationship’ created by the Partnership Agreement, her claims are subject to arbitration.”

However, the court found the agreement was not enforceable under California law. In Armendariz, the California Supreme Court considered the enforceability of a mandatory employment agreement with respect to the employees’ statutory discrimination and wrongful termination in violation of public policy claims. The state’s highest court held that such claims are arbitrable if the arbitration agreement meets certain minimum requirements and is not so one-sided as to be unconscionable.

The appellate panel rejected the law firm’s argument that Armendariz is no longer good law after the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, where the justices ruled that the Federal Arbitration Act pre-empted a California rule that class action waivers in arbitration clauses were substantively unconscionable as a matter of law.

Since Concepcion was decided, the California Supreme Court has reaffirmed the validity of Armendariz multiple times, the panel noted, and as it remains controlling law, the court is bound by it.

The parties disputed whether Ramos was an “employee” or a “partner,” and accordingly whether Armendariz applied at all. But the court found it unnecessary to resolve the question. According to the court, even if Ramos was a “partner” (a question the court did not decide), Armendariz applied because the claims Ramos asserted in her lawsuit encompassed unwaivable statutory rights, and the law firm was in a superior bargaining position, with no evidence that Ramos had an opportunity to negotiate the arbitration provision.

“Whether or not a finder of fact ultimately agrees with Ramos’ allegation that she was an employee within the meaning of FEHA, the relationship between Winston and Ramos was characterized by a power imbalance analogous to that of an employer-employee relationship,” the court wrote.

The panel then applied the Armendariz requirements, including that the agreement (1) must provide for neutral arbitrators; (2) may not limit remedies provided under the statute; (3) must offer sufficient discovery to adequately arbitrate the employee’s statutory claim; (4) must provide a written arbitration decision and judicial review sufficient to ensure the arbitrator complied with the statutory requirements; and (5) must provide that the employer pays all costs unique to arbitration.

The court agreed with Ramos that the arbitration agreement improperly limited her statutory remedies and required her to pay fees she would not otherwise have to pay in court. The last sentence of the arbitration provision “does preclude the arbitrators from providing remedies that would otherwise be available in a court of law,” the court said.

For example, Ramos alleged that her compensation was reduced by 56 percent and she was denied bonuses in 2016 and 2017. If she prevailed on these claims, she would be entitled to a variety of remedies including back pay, front pay, or both, as well as reinstatement or punitive damages.

“To award such relief, the arbitrators would have to ‘substitute their judgment’ for that of the decision makers and ‘override’ the determination of the executive committee and those authorized to act on its behalf that Ramos was not entitled to compensation, reinstatement or equivalent relief,” the panel explained. “As the express language of the agreement prevents Ramos from obtaining remedies available under her statutory claims, the provision is unenforceable.”

In addition to these problems, the panel agreed with the plaintiff that the provision’s mandate of “strict confidence” increased the unconscionability of the agreement. “[T]he language of the confidentiality clause in this arbitration agreement is very broad, as it covers ‘all aspects of the arbitration,’ including presumably, the allegations of Ramos’s complaint, the nature of the claims she is arbitrating and the discovery process itself,” the court wrote. “It is hard to see how she could engage in informal discovery or contact witnesses without violating the prohibition against revealing an ‘aspect of the arbitration.’”

“In sum, the arbitration agreement as applied to Ramos’s statutory and wrongful termination claims contains four unconscionable terms,” the court said. “The provision requiring Ramos to pay half the costs of arbitration, pay her own attorney fees, restricting the ability of the panel of arbitrators to ‘override’ or ‘substitute its judgment’ for that of the partnership, and the confidentiality clause, are unconscionable and significantly inhibit Ramos’s ability to pursue her unwaivable statutory claims.”

Having found that the agreement was both substantively and procedurally unconscionable (given that the contract was adhesive), the panel considered whether severance could remedy the situation. As the agreement contained more than one unlawful provision, the court found itself unable to strike the problematic provisions without fundamentally altering the parties’ agreement.

“Because we are not permitted to cure the deficiencies by reforming or augmenting the contract’s terms, we must void the entire agreement,” the panel wrote, reversing the order granting the motion to compel arbitration and remanding the case to the Superior Court.

To read the opinion in Ramos v. Superior Court, click here.

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EEOC’s Enforcement, Recoveries Rise in FY 2018

Why it matters

The Equal Employment Opportunity Commission (EEOC) highlighted an uptick in enforcement actions and recoveries in the release of its Performance and Accountability Report for fiscal year (FY) 2018. The agency filed 199 merits lawsuits (up from 184 filed in FY 2017), including 117 suits on behalf of individuals, 45 nonsystemic suits with multiple victims and 37 systemic suits (a category that continues to rise from 30 in 2017 and just 18 in 2016). Recoveries also rose over the prior year, with the EEOC receiving $505 million for victims of discrimination (FY 2017 brought in $484 million). Relief obtained through mediation, conciliation and settlement declined slightly, down from $355.6 million in FY 2017 to $354 million in FY 2018. The agency also made progress on its backlog, reducing its pending inventory to 49,607 charges, a decrease of 19.5 percent from FY 2017. The EEOC noted a significant increase in inquiries (a jump of 30 percent), crediting the launch of an online inquiry and appointment system, as well as the agency’s outreach, estimating that it touched more than 398,650 workers, employers and advocacy groups in FY 2018 at approximately 3,900 events.

Detailed discussion

The Equal Employment Opportunity Commission (EEOC) had a busy year. Reviewing the agency’s efforts during the 2018 fiscal year (FY), October 1, 2017, through September 30, 2018, the Performance and Accountability Report detailed “significant increases” in both outreach efforts and enforcement actions.

During FY 2018, the EEOC filed a total of 199 merits lawsuits, a slight increase over the 184 filed in FY 2017. These actions included 117 lawsuits filed on behalf of individuals, 45 nonsystemic lawsuits with multiple victims and 37 systemic suits. Defined by the EEOC as actions having “a broad impact on an industry, company or geographic area,” the number of systemic lawsuits filed by the agency continue to grow in number. In FY 2016, the EEOC filed 18, a number that jumped to 30 in FY 2017.

With enforcement on the rise, recovery also grew for the agency. More than $505 million was recovered by the EEOC for alleged discrimination victims, a notable increase over FY 2017’s $484 million in recovery and FY 2016’s $482.1 million. Of the total, recovery from litigation amounted to $53.6 million (up from $42.4 million in FY 2017), and relief obtained through mediation, conciliation and settlement hit $354 million (down slightly from $355.6 million in FY 2017).

Outside the courtroom, the EEOC successfully resolved 41 percent of its conciliations and had 45 percent of its systemic investigation result in voluntary resolutions.

The agency also highlighted its efforts with regard to the #MeToo movement, noting that it filed 66 harassment lawsuits in FY 2017, including 41 that included allegations of sexual harassment—a 50 percent growth in the number of suits over FY 2017. Charges filed with the EEOC alleging sexual harassment jumped more than 12 percent over the prior fiscal year, and the agency recovered almost $70 million for the victims of sexual harassment in FY 2018, up from $47.5 million in FY 2017.

In FY 2018, the EEOC continued to chip away at its backlog. Having made significant progress in FY 2017, the agency again managed to reduce its pending inventory, down to 49,607 charges, a drop of 19.5 percent from FY 2017.

Inquiries rose in FY 2018 by 30 percent, according to the report, an increase the agency credited to the launch of a nationwide online inquiry and appointment system as part of its Public Portal, the EEOC’s commitment to enhance technology as a means to alleviate the ever-burgeoning volume.

The report noted outreach programs (including more than 3,900 events), which the agency estimated reached north of 398,650 workers, employers and advocacy groups in FY 2018.

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FMLA Claim May Be Triggered Prior to Eligibility

Why it matters

A Family and Medical Leave Act (FMLA) claim may be triggered where an employer promised coverage before eligibility under the statute took effect, according to a new decision from a Wisconsin federal court. Angel Reif was hired in an administrative role at assisted living facility Brillion West Haven on January 25, 2017. In early January 2018, Reif’s doctor recommended surgery to repair her Achilles tendon. A human resources (HR) employee explained that Reif would not be eligible for FMLA leave until after January 25, 2018, and she scheduled her surgery for January 31. Later the same day, however, the HR employee came back to Reif to say that she was no longer allowed to work until after her surgery, due to concerns that she could hurt herself at work. The HR employee told Reif that her FMLA leave would be approved and she should move up her surgery. Reif followed these instructions, had surgery on January 17, was informed that she was not eligible for FMLA leave and then terminated, when the employer said it would not hold her position during her recovery. Reif filed suit alleging interference and discrimination in violation of the FMLA. Denying the employer’s motion to dismiss, the court held that the assurances by HR to Reif gave rise to viable FMLA claims—even though the plaintiff was not yet eligible for leave under the statute.

Detailed discussion

On January 25, 2017, Angel Reif was hired as an administrative assistant at Brillion West Haven, an assisted living facility in Wisconsin. During the course of her employment, Reif experienced significant pain in her right hip and knee due to an abnormal gait she developed in response to an unsuccessful repair of a torn Achilles tendon she sustained in 2003.

In early January 2018, Reif’s doctor advised her that surgically repairing her Achilles tendon would improve her gait and significantly reduce the pain she was experiencing. Reif met with the human resources (HR) coordinator for Brillion’s parent company and explained the situation. She told the HR employee she planned to undergo surgery when she became eligible for Family and Medical Leave Act (FMLA) leave.

When the HR employee informed Reif she would not be eligible for FMLA leave until January 25, 2018, Reif contacted her doctor and scheduled the surgery for January 31, 2018. Reif informed HR of the date and her intent to apply for FMLA leave.

That same day, after consulting with a superior, the HR employee reached out to Reif and told her she needed to immediately punch out and go home until she was completely healed from surgery. Although Reif was not under any restrictions from her doctor, the HR employee told Reif that she was a “liability” and the company did not want her to injure herself further and file a workers’ compensation claim.

Importantly, the HR employee also told Reif that she needed to schedule her surgery as soon as possible, that she would make sure Reif’s FMLA request was approved and that Reif’s job would be there for her when she returned.

Given her sudden loss of income and in reliance on the assurances, Reif rescheduled her surgery for January 17 and submitted an FMLA application for leave. However, on January 22 she received a letter denying her request for FMLA leave because she was ineligible. Two days later, the company informed Reif it would not hold her job open, and thereafter filled her position.

Reif then filed suit under FMLA, asserting claims of interference and discrimination in violation of the statute. The employer moved to dismiss, arguing that Reif was ineligible for coverage under the statute as she had not been employed for one full year when she made her request for leave.

U.S. District Court Judge William C. Griesbach sided with the plaintiff.

“[The defendant] would be on solid ground as far as the FMLA is concerned if Reif had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave,” the court wrote. “But according to the allegations of the complaint, which remember must be accepted as true at this stage of the proceedings, that is not what happened.”

If Reif’s allegations turn out to be true, then the employer may be estopped from refusing to grant her FMLA leave, the court said.

“Reif alleges more than just silence by her employer,” Judge Griesbach wrote. “It would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

Even without invoking the equitable doctrine of estoppel, the court said it appeared that Reif’s FMLA claims would survive, citing a decision from the U.S. Court of Appeals for the Eleventh Circuit. The 2012 opinion in Pereda v. Brookdale Senior Living Communities, Inc., (LINK: I sent PDF) recognized that without protecting against pre-eligibility interference, “a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible,” a situation that “is contrary to the basic concept of the FMLA.”

The court denied the defendant’s motion to dismiss Reif’s FMLA interference and discrimination claims.

To read the decision and order in Reif v. Assisted Living by Hillcrest LLC, click here.

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Eighth Circuit: Request for Religious Accommodation Not Always Protected Activity

Why it matters

Requests for religious accommodations should not be categorically considered protected activity under Title VII’s anti-retaliation clause, a divided panel of the U.S. Court of Appeals for the Eighth Circuit recently ruled, affirming summary judgment in favor of the employer. The Equal Employment Opportunity Commission (EEOC) filed suit against North Memorial Health Care on behalf of a Seventh Day Adventist nurse. During her interview with the hospital, she learned that the union contract would require her to work every other weekend. When she received a conditional job offer, she informed human resources (HR) that she could not work Friday nights or Saturday days due to religious reasons. After her offer was revoked, the EEOC sued. The district court granted summary judgment in favor of North Memorial and the Eighth Circuit affirmed. Requesting a religious accommodation—as distinct from opposing the allegedly unlawful denial of a religious accommodation—was not a protected activity, the panel held, rejecting the agency’s position that the nurse’s request for an accommodation was statutorily protected activity.

Detailed discussion

Located in Robbinsdale, Minnesota, North Memorial Health Care conducts an “Advanced Beginner” residency program to attract hospital nurse applicants by providing training to registered nurses who previously worked in nonhospital settings (such as home care).

Emily Sure-Ondara applied through the program to work for North Memorial’s Collaborative Acute Care for the Elderly Unit. Although she was informed that the position required nurses to work eight-hour shifts every other weekend—terms and conditions established by North Memorial’s collective bargaining agreement with the Minnesota Nurses Association—Sure-Ondara did not disclose that her religion would prevent her from working from sundown Fridays to sundown on Saturdays.

Sure-Ondara was offered and accepted a conditional offer that included a letter stating the requirement to work every other weekend. When she went to the hospital to complete her pre-employment paperwork, Sure-Ondara disclosed that she was a Seventh Day Adventist, telling a human resources (HR) employee, “I need to be accommodated because of my religious beliefs, that I need Friday nights off for Sabbath rest. I don’t work Fridays.”

Another HR employee followed up with Sure-Ondara and advised that if she was unable to work every other weekend per the union agreement, North Memorial might need to offer the position to another candidate. Sure-Ondara replied that she wanted the job and would “make it work” by finding a substitute for her Friday night shift or come in herself in an emergency or life-or-death situation.

A group of HR employees met to discuss Sure-Ondara’s request for religious accommodation and decided to rescind the employment offer because it would not be possible for a newly trained nurse in the program to consistently trade her Friday night shifts, which are unpopular with most nurses. After North Memorial rescinded the offer, Sure-Ondara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

The agency filed suit on Sure-Ondara’s behalf in September 2015, alleging that North Memorial engaged in unlawful retaliation in violation of Section 2000e-3(a). The district court granted the employer’s motion for summary judgment.

Backed by several religious organizations and the ACLU, the EEOC appealed. Requests for religious accommodation are protected activity under Title VII’s anti-retaliation provision, the agency told the U.S. Court of Appeals for the Eighth Circuit. But the federal appellate panel disagreed, affirming summary judgment in favor of North Memorial.

To establish a prima facie case of unlawful opposition-clause retaliation under Section 2000e-3(a), the EEOC needed to present evidence that Sure-Ondara opposed a practice made unlawful, the court said. The Eighth Circuit asked: What form of employment discrimination did Sure-Ondara oppose?

“Sure-Ondara did not complain that North Memorial unlawfully refused to accommodate,” the panel wrote. “She requested an accommodation, and it is undisputed on this record that North Memorial’s non-discriminatory practice was to consider such requests on a case-by-case basis. After she made the request and no mutually acceptable accommodation was reached, Sure-Ondara’s Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under section 2000e-2(a) for failure to reasonably accommodate.”

The EEOC failed to establish a prima facie case of opposition-clause retaliation, the court said, because merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation. The fact that a request for religious accommodation may be protected activity does not mean it is always “oppositional” activity, the panel added.

For example, if an employer adopted a policy of not accommodating religious practices, an employee who was fired because she objected to this unlawful policy in requesting an accommodation would have an opposition-clause retaliation claim under Section 2000e-3(a), as well as a disparate treatment claim under 2000e-2(a). If an employee or applicant requested a religious accommodation and the employer denied it on the ground that it was not in fact based on a religious practice and fired or refused to hire the employee or applicant because she made the request, this scenario would support an opposition-clause retaliation claim under 2000e-3(a), based on analogous cases under the Americans with Disabilities Act (ADA).

“But when an employee or applicant requests a religious accommodation, and the request is denied by an employer such as North Memorial that accommodates reasonable requests that do not cause ‘undue hardship,’ there is no basis for an opposition-clause retaliation claim under 2000e-3(a),” the panel wrote. “Rather, the employee or applicant’s exclusive Title VII remedy is an unlawful disparate treatment or disparate impact claim under section 2000e-2(a)(1).”

A dissenting opinion would have held that a request for an accommodation constitutes protected activity under Title VII’s anti-retaliation provision, in line with precedent in the parallel ADA context.

To read the opinion in Equal Employment Opportunity Commission v. North Memorial Health Care, click here.

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