Friday, January 11, 2013

Does a Request for Accommodation Constitute Protected Activity?


Recently, Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia, in Payne v. Salazar, No. 1:08-00164, 2012 U.S. Dist. LEXIS 151095 at *23-24 n.7 (D.D.C. Oct. 21, 2012) held that a request that one’s religious convictions be accommodated (e.g. a Seventh Day Adventist not be compelled to work on the Sabbath) does not constitute protected activity under Title VII.  In doing so, the Court rejected EEOC’s long-standing interpretation of the statute.  See, EEOC Compl. Man. Section 12 – Religion (2008)(stating that, “EEOC has taken the position that requesting religious accommodation is protected activity.”) (available at visited 01/11/13); EEOC Compl. Man. Section 8 – Retaliation (1998) (stating that under section 503 of the Americans with Disabilities Act a request for a reasonable accommodation is a protected activity and explaining that by the same rationale requesting a religious accommodation is also a protected activity under Title VII)(available at (last visited 01/09/13).

The Court did note that several courts have held that requests for accommodations in disability cases under the ADA and the Rehabilitation Act have been found to be protected activity.  Indeed, there are decisions from other judges of the same court so holding.  See, Weng v. Solis, 842 F. Supp. 2d 147 (D.D.C. Feb. 6, 2012) (where, visiting Judge Barbara Rothstein implicitly held that accommodation requests were protected activity under the Rehabilitation Act.); Zeigler v. Potter, 641 F.Supp 2d 25 (D.D.C. August 13, 2009)(Agreeing with the 7th Circuit’s finding in Cassimy v. Bd. of Ed., 461 F. 3d 932 (7th Cir. 2006) that a good faith request for a reasonable accommodation under the ADA is a protected activity even if the plaintiff is found not to be disabled.); DuBerry v. District of Columbia, 582 F. Supp. 2d 27 (D.D.C. 2008) (where Judge Rosemary Collyer held that a request for accommodation of a disability is a “protected activity” within the meaning of the ADA).  See also, E.E.O.C. v. Chevron Phillips Chem. Co., 5th Cir. 2009)(noting, “Every appeals court to consider the issue has concluded  that [requesting an accommodation] is protected as long as the employee had the reasonable belief that he was covered by the ADA.); See also Wright v. COMPUSA, Inc., 352 F.3d 472 (1st Cir. 2003) (holding that requesting a reasonable accommodation is a protected activity under § 12203(a) of the ADA.); Butler v. Exxon Mobil Corp., 838 F. Supp. 2d 473 (M.D. La., Jan., 25, 2011)(holding, employee’s request for accommodation when he had a reasonable belief he was disabled under the ADA constituted protected activity.); Mayer v. Future Elect. GP Corp., 2008 WL 4603302 (N.D.Miss. Oct. 15, 2008)(finding, “[plaintiff] presented sufficient evidence to create a genuine issue of fact that [defendant] retaliated against her for engaging in a protected activity (here, requesting an accommodation).”); Connolly v. Mitsui O.S.K. Lines, (Am.) Inc., 2007 U.S. Dist. Lexis 86490 (D.D.N.J. Nov. 21, 2007)(finding that the plaintiff plead sufficient facts to allow her retaliation claim under the ADA, due to a request for accommodation, to go forward.)  In the religious accommodation case, Judge Kollar-Kotelly did not distinguish the holdings in the disability accommodations cases from her holding in Payne.  

Some federal courts have assumed that requests for religious accommodation are protected activity.  See, e.g. Porter v. City of Chicago, 2012 U.S. App. LEXIS 23041 at *28 (7th Cir. 2012) (stating in a case about religious accommodations, “[w]e assume, as the parties do, that Porter engaged in statutorily protected activity, including her request to have Sundays off . . . [and] her request for a schedule adjustment to attend ministry classes . . .); Ollis v. Hearthstone Homes, Inc., 495 F.3d 570 (8th Cir. 2007)(employee’s complaints that attending spiritual meetings conflicted with his religious beliefs constituted protected activity).; Virts v. Consolidated Freightways Corp. of Del., 285 F.3d 508 (6th Cir. 2002) (employer conceded prima facie case of retaliation in religious accommodation case where plaintiff’s refusal to work without accommodation was deemed a voluntary resignation by management).  Other courts have gone a step further and held that requesting religious accommodations is a protected activity.  See, M.C.A.D v. Kelly Honda, Docket NO. 06-BEM-01199 (Mass. Comm’n Against Discrim. November, 2011)(where the state law had almost identical retaliation language as Title VII and was analyzed under the McDonnell Douglas burden shifting framework, the court held that employee’s opposition to removing head covering and request to wear it constituted protected activity)(available at:
/MCAD%20&%20Shahadat%20Hussain%20Suhrawardy%20vs%20Kelly%20Honda%20&%20Kelly%20Automotive%20Group%20Inc.pdf)(last visited 1/11/13).

In Weixel v. Bd. of Education of New York, 287 F.3d 138, 149 (2d Cir. 2002), the Second Circuit held that a request for reasonable accommodation of a disability under the Rehabilitation Act constituted protected activity.  In Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997), the First Circuit similarly found that requesting a reasonable accommodation under § 12203(a) of the ADA was a protected activity.  The Soileau court explains, “[i]t would seem anomalous, however, to think Congress intended no retaliation protection for employees who request an accommodation unless they also file a formal charge.”  Soileau, 105 F.3d at 16.   

The language of 42 U.S.C. § 12203(a) states, “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.”  Similarly, Title VII makes it unlawful for an employer to discriminate against an employee who, “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  42 U.S.C. § 2000e-3(a)(2012).  If under the ADA it, “would seem anomalous . . . to think Congress intended no retaliation protection for employees who request an accommodation unless they also file a formal charge,” Soileau, 105 F.3d at 16, so too is “anomalous” that the same should not apply to requests for religious accommodations under Title VII.  

This issue is currently on appeal to the Court of  Appeals for the D.C. Circuit in Solomon v. Vilsack, No. 12-5123 (D.C. Cir. April 19, 2012) (appeal from Solomon v. Vilsack, 845 F. Supp. 2d 61 (D.D.C. 2012)). 

For additional information:
  • The Center For Social Gerontology, Inc., Retaliation by Employers for Requesting Accommodation Under the ADA (2001) available at:

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