Wednesday, May 3, 2023

An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

"Instead of rejecting the applicant’s religious accommodation request outright, Mercy Health should have followed up with him if it had questions," said Dale Price, senior trial attorney in the EEOC's Detroit Field Office. "If it had questions, Mercy Health could have spoken with this individual before making a decision to determine the contours of his religious beliefs, rather than prematurely determining that his beliefs were not genuine."

In other words, the hospital should have engaged in the interactive process with the applicant. As explained by the EEOC its technical guidance on workplace religious discrimination:

Employer-employee cooperation and flexibility are key to the search for a reasonable accommodation. If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective. If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it. 

The law may not guarantee a religious (or disabled) employee a preferred accommodation or even any accommodation, but it absolutely guarantees that employers engage employees seeking a reasonable accommodation in an interactive process to determine the appropriate accommodation (if any). If an employer dismisses an individual's accommodation request outright, it will be difficult, if not impossible, for that employer to show that it engaged in the required interactive process. In that case, even if the employee's request is not possible, unduly burdensome, or otherwise unreasonable, the employer nevertheless violates the law. Indeed, it's the surest way to turn a defensible accommodation claim into an indefensible litigation nightmare.