Adverse Action Required in Religious Failure-to-Accommodate Claims?

John T. Melcon

A federal district court in Colorado has reaffirmed that an adverse employment action is required to state a religious failure-to-accommodate claim under Title VII, notwithstanding the Tenth Circuit’s recent en banc ruling that an adverse action is not required for failure-to-accommodate claims in the disability context (see previous post).

Siding with Sherman & Howard attorneys who argued the case, the district court said it properly dismissed claims brought by the EEOC on behalf of Muslim workers who were denied an accommodation for prayer breaks during Ramadan because the EEOC failed to show that the workers suffered a materially adverse employment action as a result of the denial. The court explained that the Tenth Circuit, in its recent Exby-Stolley decision, expressly distinguished religious failure-to-accommodate claims under Title VII from disability failure-to-accommodate claims under the ADA, concluding that the adverse action requirement applies only to the former.

The EEOC, in its newly-revised guidance on religious discrimination in the workplace, has taken the contrary position, i.e., that “the denial of reasonable religious accommodation absent undue hardship is actionable even if the employee has not separately suffered an independent adverse employment action, such as being disciplined, demoted, or discharged as a consequence of being denied accommodation.” Other federal courts, including the Third and Ninth Circuits, have aligned with the EEOC’s position.

This issue could come into play for employers implementing mandatory COVID-19 vaccination policies. If such an employer denies accommodation requests by two employees—one based on religion and one based on disability—without further adverse action (because, for example, the employees elect to receive the vaccine after their requests are denied), it is possible that—at least in the Tenth Circuit—only the latter employee could have a cause of action under federal law.