TABLE OF AUTHORITIES.................................................................... ii

STATEMENT OF INTEREST................................................................. 1

STATEMENT OF THE ISSUE................................................................ 2

STATEMENT OF THE CASE................................................................. 2

A. Statement of the Facts................................................................... 2

B. District Court’s Decision............................................................... 7

ARGUMENT............................................................................................ 9

Title VII requires an employer to reasonably accommodate its employees’ and applicants’ religious observances and practices, absent undue hardship, without regard to whether they suffered another adverse employment action resulting from the denial of such accommodation........................................................................... 9

CONCLUSION...................................................................................... 24

CERTIFICATE OF COMPLIANCE...................................................... 26

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013)... 17, 18, 24

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1980)...................... 13, 14

Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066 (N.D. Ind. 2001) 19

Chalmers v. Tulon Co., 101 F.3d 1012 (4th Cir. 1996)........................... 10

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).. 11, 14, 23

EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013)........................................................................................................ 10

EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) 14, 20, 21

Goldmeier v. Allstate Ins. Co., 337 F.3d 629 (6th Cir. 2003).................. 22

Lawson v. State of Washington, 319 F.3d 498 (9th Cir. 2003).......... 12, 20

Nichols v. Ill. Dep’t of Transp., 152 F. Supp. 3d 1106 (N.D. Ill. 2016) 8, 9, 17-19

Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445 (7th Cir. 1981)........................................................................................................ 15

Peterson v. Hewlett–Packard Co., 358 F.3d 599 (9th Cir. 2004)............. 10

Reed v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 569 F.3d 576 (6th Cir. 2009)................................... 22-23

Rodriguez v. City of Chicago, No. 95-C-5371, 1996 WL 22964 (N.D. Ill. Jan. 12, 1996)........................................................................................... 19

Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634 (7th Cir. 2015)................................................................................................. 18

Storey v. Burns Int’l Sec. Servs., 390 F.3d 760 (3d Cir. 2004)................ 21

Trans World Airways v. Hardison, 432 U.S. 63 (1977)..................... 13, 14

Xodus v. Wackenhut Corp., 619 F.3d 683 (7th Cir. 2010)...................... 18

Statutes and Rules

42 U.S.C. §§ 2000e.................................................................................... 1

42 U.S.C. § 2000e-2(a)(1).......................................................... 1, 9, 11, 22

42 U.S.C. § 2000e(j).............................................................. 1, 9-10, 13, 22

Fed. R. App. P. 29(a)................................................................................ 1

Other Authorities

118 Cong. Rec. 7167 (March 6, 1972).................................................... 10

118 Cong. Rec. 7564 (March 8, 1972) ................................................... 10

EEOC Compliance Manual Section 12-IV (July 22, 2008)............ 11, 14

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII prohibits employers from discriminating on the basis of religion and requires them to provide a reasonable accommodation for the religious beliefs and practices of their employees where they can do so without undue hardship. Id. §§ 2000e-2(a)(1), 2000e(j). The district court granted summary judgment to the defendant on the plaintiff’s religious failure-to-accommodate claim, ruling that there was insufficient evidence he suffered an adverse action because of his request for prayer breaks. The district court erroneously required evidence of another adverse action in addition to the refusal to accommodate his religion. Because the EEOC has a strong interest in seeing that courts interpret Title VII correctly, it offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Whether Title VII requires an employer to reasonably accommodate its employees’ and applicants’ religious observances and practices, absent undue hardship, without regard to whether they suffered another adverse employment action resulting from the denial of such accommodation.

STATEMENT OF THE CASE

A. Statement of the Facts

Mohammed Mahran, an Egyptian Muslim, worked as a pharmacist at Advocate Christ Medical Center (“Advocate”) beginning in November 2013. Short Appendix (“A”)-43. His duties included verifying orders, providing recommendations to nurses and doctors, adjusting the dose and frequency of medications based on a patient’s lab work, and providing expertise on patients’ drug regimens. A-44. After completing a ninety-day probationary period, Mahran was hired for a full-time permanent position in April 2014. A-44-45.

Mahran is a practicing Muslim. His faith requires him to pray five times within each twenty-four-hour period, one or two times during the work day. R.36-1 at 25 (Mahran Dep. 95-96); A-53. Mahran’s supervisors knew of his religious requirements. R.36-1 at 222 (Sweis Dep. 88); R.36-2 at 29-30 (Sweis and Milicev emails). Advocate has a nondenominational chapel, an employee room where prayer is permitted, and an additional room made available on Fridays for Muslim prayer. A-47.

Hospital employees were permitted two fifteen-minute breaks and a thirty-minute lunch period. A-47. Pharmacists were supposed to stagger breaks and communicate with each other to make sure there was sufficient coverage in the central pharmacy and on the hospital floors. Id. Mahran believed that Muslim pharmacy employees were permitted only the lunch break and alleged he was rarely allowed to take these breaks. R.36-1 at 27 (Mahran Dep. 101-03); A-47.

Late in 2015, pharmacy director Rolla Sweis complained to Human Resources (“HR”) that the Muslim pharmacists were invoking their religion without considering patient care. A-47. In a December 14 email, Sweis stated:

Can I set up a mtg to discuss prayer breaks[?] I have multiple associates that are taking breaks for prayers because as a [M]uslim they are to pray 5 times a day. It was brought to our attention bc it’s impacting the dept. [A]m I able to tell them to pray when they get home or they can only do so if it doesn’t impact the dept? [Clinical manager Branka Milicev] recently attended the law class and they were told there that we are to respect and allow staff the time for prayers and to me patient care comes first. I just want to make sure I’m doing things right.

R.36-2 at 30; A-47. HR consultant Caitlin Malito responded that “[a]ssociates are able to use their break and mealtime as they please. If leaving the department several times a day has a negative impact on patient care, we do not have to accommodate.” Id.

Mahran alleged that after Sweis sent the email, Milicev told one of the Muslim pharmacists, Khalil Alwatik, to “pass the message for all Muslim pharmacists that they are not now permitted to pray or take a break or use their break for praying from now on.” R.36-1 at 24 (Mahran Dep. 92); A-47. Alwatik passed along the directive to Mahran and the other Muslim coworkers. R.36-1 at 27 (Mahran Dep. 102-03). Mahran testified regarding what he perceived as the hospital’s hostility toward allowing prayer breaks, “Only non-Muslims are taking their breaks when they need to. Muslims are only allowed to take lunchtime and do their prayer in the lunchtime. But other non-Muslims, they can take a break. They can take two breaks plus the lunchtime.” R.36-1 at 26 (Mahran Dep. 100).

Although Mahran was not “overtly disciplined” for praying during a break, on one occasion in March 2016, supervisor Chris Boyle prevented him from taking a prayer break because the pharmacy was too busy and told him not to take prayer breaks in the future. R.36-1 at 27, 30 (Mahran Dep. 111, 116); A-48. Mahran prayed during his lunch that day, which he took later than usual. R.36-1 at 30-31 (Mahran Dep. 116-17); A-48.

Mahran was counseled, disciplined, and ultimately fired on June 24, 2016, for various performance issues. A-46. Mahran had complained to HR repeatedly that his performance ratings and warnings stemmed from religious, racial, and ethnic discrimination. A-46-47. Mahran filed two charges of discrimination with the Illinois Department of Human Rights (“IDHR”), received a right-to-sue notice for each charge, and then filed suit in district court. R.1-1 Exh. A (charges); R.1-1 Exh. B (notice of dismissal and right to sue notices); R.1 (complaint). In his complaint, Mahran alleged various forms of discrimination and retaliation based on religion, ethnicity, and national origin in violation of Title VII. R.1 at 10-20.

Advocate moved for summary judgment, which the district court granted in two stages. The court first granted summary judgment as to all claims “except to the extent [Mahran] asserts a claim for religious discrimination based on a failure to accommodate.” A-41. Advocate then moved for summary judgment again, arguing that Mahran never pled a failure-to-accommodate claim and that failure to accommodate was beyond the scope of his IDHR charges. R.57 at 4-7. The hospital also maintained that he was never prevented from taking a prayer break nor disciplined for praying, and that he did not suffer an adverse action for praying during any break; his termination was for performance reasons unrelated to prayer breaks. R.57 at 7-9. Finally, Advocate argued, it had accommodated him and any additional accommodation would have been an undue hardship. R.57 at 9-12.

B. District Court’s Decision

The district court granted summary judgment to Advocate “[b]ecause Mahran cannot establish all the elements of a failure to accommodate claim.” A-42. Focusing on the first element—a religious observance or practice that conflicts with an employment requirement—the court accepted Advocate’s argument that the one occasion when Mahran was told not to take a break did not constitute evidence of such a conflict because Mahran was able to pray later at lunch. A-53. The court also noted that Mahran was not told directly that he could not take prayer breaks or use his breaks to pray, nor was he disciplined for praying during a break. Id. However, the court found, the evidence that Milicev asked Alwatik to tell the Muslim pharmacists they could not pray on their breaks and the discussions with HR about when Muslim pharmacists could pray, while “thin,” raised a genuine issue of material fact “as to whether [Mahran’s] faith requirement of praying five times a day conflicted with his employment requirements.” Id.

Nonetheless, the district court held, “Mahran’s claim fails because a reasonable juror could not find that Mahran suffered any adverse action for praying during his breaks.” A-54. As it had already ruled, the court explained, the negative evaluations and receipt of a performance deficiency notice were not adverse employment actions as a matter of law, and Mahran was fired for multiple performance issues, not because of his religious practice. Id.

The court pointed out in a footnote that the “parties do not challenge the Seventh Circuit’s delineation of a prima facie case for a religious failure to accommodate claim, accepting that Mahran must demonstrate he suffered an adverse employment action because of his religious practice.” A-54 (citing EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir. 1996) (requiring the plaintiff to show “the religious practice was the basis for the adverse employment action”)). The court added that “[a]lthough the Nichols court questioned that formulation, because the Nichols court declined to make a ‘definitive ruling’ on the issue and the parties do not advocate for a different standard, the Court only considers whether Mahran can demonstrate he suffered an adverse employment action because of his religious practice.” Id. (discussing Nichols v. Ill. Dep’t of Transp., 152 F. Supp. 3d 1106, 1121-22 (N.D. Ill. 2016)).

ARGUMENT

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion.” 42 U.S.C. § 2000e-2(a)(1) (emphases added). Congress incorporated the reasonable accommodation duty into Title VII in 1972 by defining “religion” to encompass “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). See 118 Cong. Rec. 7167 (March 6, 1972) (Senate); 118 Cong. Rec. 7564 (March 8, 1972) (House of Representatives) (“Failure to make such accommodation would be unlawful unless an employer can demonstrate that he cannot reasonably accommodate such beliefs, practices, or observances without undue hardship on the conduct of his business.”).

Prior to the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), most circuit courts, and the EEOC in its compliance manual, had conceived of religious accommodation claims as being distinct, or different in nature, from disparate treatment claims. See, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1120 (10th Cir. 2013) (“Religion-accommodation claims are a subset of the types of religion-discrimination claims that an applicant or employee may present under Title VII.”); Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) ( “A claim for religious discrimination under Title VII can be asserted under several different theories, including disparate treatment and failure to accommodate.”); Chalmers v. Tulon Co., 101 F.3d 1012, 1018 (4th Cir. 1996) (“[A]n employee is not limited to the disparate treatment theory to establish a discrimination claim. An employee can also bring suit based on the theory that the employer discriminated against her by failing to accommodate her religious conduct.”) (emphasis omitted); see also EEOC Compliance Manual (“Compl. Man.”), Section 12-IV (“A religious accommodation claim is distinct from a disparate treatment claim[.]”) (July 22, 2008).

But the Supreme Court stated in Abercrombie, 135 S. Ct. at 2032, that disparate treatment and disparate impact are “the only causes of action under Title VII.” See also id. (the only causes of action under Title VII stem from the anti-discrimination provisions of 42 U.S.C. § 2000e-2(a); failure to accommodate is not a separate, stand-alone claim). That language has created some apparent confusion in the lower courts, which is, at least in part, why the EEOC offers its views to this Court. Although the Abercrombie Court rejected the notion that the religious failure-to-accommodate claim was distinct from disparate treatment, it did not alter the nature or amount of proof required to establish that such a violation occurred.

Where an employee is presented with a conflict between his religious beliefs and compliance with a work rule, requiring him to work without religious accommodation necessarily alters the terms and conditions of his employment for the worse. Certainly, nothing in the statutory text indicates that employees must await another unfavorable employment action, such as discipline or discharge, before they have an actionable Title VII claim. See Lawson v. State of Washington, 319 F.3d 498, 501-02 (9th Cir. 2003) (Berzon, J., dissenting from denial of reh’g en banc) (because Title VII forbids employers from otherwise discriminating against any individual with respect to his terms, conditions, or privileges of employment, “imposing discriminatory terms can violate the statute, without more. And, since the statute defines ‘religion’ as including a failure to accommodate, an employer who unreasonably fails to accommodate religious practice absent undue hardship discriminates on the basis of religion in setting the terms of employment”).

This understanding of Title VII finds support in several sources apart from the statute itself, beginning with the Supreme Court’s decisions in Trans World Airways v. Hardison, 432 U.S. 63, 74 (1977), and Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68 (1980). In Hardison, the Court stated that “[t]he intent and effect of this definition [of religion] was to make it an unlawful employment practice under § 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” 432 F.3d at 74. The Court added, “the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear ….” Id. at 75. And, in Ansonia, the Court said, “The employer violates the statute unless it ‘demonstrates that [it] is unable to reasonably accommodate … an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.’” 479 U.S. at 68 (quoting 42 U.S.C. § 2000e(j)); see also id. at 63 n.1 (“Section 701(j) … was added in 1972 to illuminate the meaning of religious discrimination under the statute.”).

Hardison and Ansonia suggest that failing to accommodate is an unlawful employment practice without regard to whether another, separate employment penalty is visited upon the employee.[2] Cf. Abercrombie, 135 S. Ct. at 2033-34 (“[R]eligious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”).

Consequently, even in cases where employees reluctantly capitulate to their employers’ demands that they sacrifice their sincerely held religious beliefs or practices in order to keep their jobs, the employer has still violated Title VII in forcing them to make that Hobson’s choice. See EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”) (citing Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 774-75 (9th Cir. 1986)); see also Compl. Man. § 12, Religious Discrimination, at text accompanying nn.138-39 (quoting Townley).

This Court has not had occasion to rule directly on this question pre- or post-Abercrombie, but the EEOC is unaware of any instance where the Court has rejected an otherwise viable failure-to-accommodate claim solely for failure to show a separate adverse action. Additionally, Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445, 454 (7th Cir. 1981), contains language recognizing that an employer’s failure to accommodate an employee’s religious beliefs and practices is an independent harm and potential violation of Title VII. The plaintiff in Nottelson was a Seventh-day Adventist whose religious beliefs included the conviction that it is morally wrong to belong to a union or pay union dues. When he asked to pay the amount of his dues to a charity in lieu of the Union as an accommodation, the Union refused his request and expelled him from its membership for failure to pay dues; the company then discharged him. Id. at 448. In ruling that Section 701(j) did not violate the First Amendment’s Establishment Clause, the Court explained that this provision, “by prohibiting unreasonable refusal to accommodate religiously motivated conduct and practices as well as beliefs, is plainly intended to protect the employment opportunities not only of the victims of overt discrimination but also of individuals who are unintentionally discriminated against because their religious convictions are not reflected in facially neutral majoritarian rules. . . . Section 701(j) is also plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions where such relief will not unduly burden others.” Id. at 454. The Court added, “[a]pplication of Section 701(j) … does not confer a benefit on those accommodated, but rather relieves those individuals of a special burden that others do not suffer.” Id. This Court’s recognition that the plaintiff suffered a burden “that others do not suffer” by having to choose between violating his religious beliefs or being fired is consistent with the notion that the failure to accommodate itself constitutes discrimination in the terms and conditions of employment.

This Court holds that, to establish a prima facie case of religious discrimination based on failure to accommodate, a plaintiff must show that (1) the observance or practice conflicting with a work requirement is religious in nature, (2) the employee called the religious observance or practice to the employer’s attention, and (3) the religious observance or practice was the basis for the employee’s discharge or other discriminatory treatment. Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 449 (7th Cir. 2013). The Nichols court (on which the district court here relied) pointed out, “Seventh Circuit case law gives very little guidance as to what the term ‘discharge or other discriminatory treatment’ means.” 152 F. Supp. 3d at 1121. Regardless of what label is applied to the penalty or consequence to the employee, the failure to accommodate a religious need materially affects the individual’s terms and conditions of employment. Accordingly, this Court should recognize that working without a religious accommodation is itself “other discriminatory treatment” or an adverse action within the meaning of this Court’s prima facie case requirement.

As the district court in this case observed, in Nichols, 152 F. Supp. 3d at 1121-23, the Northern District of Illinois questioned the additional adverse action requirement in some detail. There, the Muslim plaintiff sought and was denied additional time in a quiet location to pray at work. Id. at 1120. The employer argued there was no evidence his religious observance or practice was the basis for his discharge because he was fired for violating the company’s workplace violence policy after he sent a fax complaining about other workplace issues. The Nichols court stated that the last requirement of the Seventh Circuit’s formulation of the prima facie case “presents somewhat of a problem” where cases “appear to invoke the adverse employment action requirement without consciously considering whether that term is appropriate in the context of a religious failure to accommodate case.” Id. at 1121. The court pointed out that because cases such as Adeyeye, 721 F.3d at 447, or Xodus v. Wackenhut Corp., 619 F.3d 683, 684 (7th Cir. 2010), involved obvious adverse employment actions such as termination or refusal to hire, “they cannot be said to stand for the proposition that an adverse employment action is required.” Id. (citing and quoting Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 640 (7th Cir. 2015) (“‘unexamined assumptions of prior cases do not control the disposition of a contested issue’”)). Logically, the Nichols court said, “the injury in a failure to accommodate is the inability to practice one’s religion that occurs immediately, not later when there may be some possibly related job action.” Nichols, 152 F. Supp. 3d at 1122. The district court concluded that “either … an adverse employment action separate from [defendant’s] failure to accommodate is not required, or … the evidence is disputed” regarding whether the plaintiff’s termination was motivated in part by his request for a religious accommodation. Id. at 1123.

Other district court decisions within the circuit have implicitly recognized that the denial of accommodation is itself an injury. For example, in Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1073 (N.D. Ind. 2001), the plaintiff sought a religious exemption from paying union dues. While the issue was whether the plaintiff’s views on union dues were religious and sincerely held, the court articulated the showing for a prima facie case as including that “adverse action was taken for failing to comply with the conflicting requirement, in this case, the failure of the union to make a religious accommodation.” 164 F. Supp. 2d at 1073.

In Rodriguez v. City of Chicago, No. 95-C-5371, 1996 WL 22964 (N.D. Ill. Jan. 12, 1996), a Roman Catholic police officer asked to be exempt from assignment to two abortion clinics where police were enlisted to protect clinic property and employees during demonstrations. The officer informed his superiors that his religious beliefs conflicted with his participation in keeping the clinics open. After he was nonetheless assigned to cover one of the clinics, which he did under protest, he sued the City under Title VII. Id. at *1. The court rejected the employer’s argument that the plaintiff suffered no adverse employment action, stating “‘the threat of discharge (or of other adverse employment practices) is a sufficient penalty’ to establish the third element of the prima facie case.” Id. at *3 (quoting Townley Eng’g, 859 F.2d at 614 n.5). The court added, “It is nonsensical to suggest that an employee who, when forced by his employer to choose between his job and his faith, elects to avoid potential financial and/or professional damage by acceding to his employer’s religiously objectionable demands has not been the victim of religious discrimination.” Id.; see also id. (observing that plaintiff “reasonably could have inferred that he would be disciplined for his refusal to comply with [the] assignment” to the clinic); Lawson, 319 F.3d at 503 (Berzon, J., dissenting from denial of reh’g en banc) (“Employees must do as they are told or suffer the consequences. Nothing in our prior caselaw encourages insubordination by requiring that employees flaunt the rules and actually suffer discipline before they can bring suit to challenge a failure to accommodate their religious practices.”).

The Third and Ninth Circuits have expressly concluded that working in the absence of religious accommodation is an adverse action. See Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 765 (3d Cir. 2004) (“An employer’s failure to reasonably accommodate an employee’s sincerely held religious belief that conflicts with a job requirement can also amount to an adverse employment action unless the employer can demonstrate that such an accommodation would result in ‘undue hardship.’”); Townley Eng’g, 859 F.2d at 614 n.5 (“We note that although we have occasionally used language implying that the employer must discharge the employee because of the conflict, we have never in fact required that the employee’s penalty for observing his or her faith be so drastic. The threat of discharge (or of other adverse employment practices) is a sufficient penalty. An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.” (internal citations omitted)).

Unlike the Third and Ninth Circuits, the Sixth Circuit has held that the failure to accommodate an employee’s religious beliefs or practices is not actionable without some further “independent harm.” See Reed v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 569 F.3d 576, 580 (6th Cir. 2009) (“Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation.”); see also Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 633-35, 637-38 (6th Cir. 2003) (holding that Orthodox Jewish couple who resigned rather than comply with requirement to work on Sabbath failed to establish third prong of prima facie case, which requires showing of “discharge or discipline”).

However, the Sixth Circuit’s rationale is legally and logically deficient in several key respects. Critically, it completely fails to account for the statutory language in 42 U.S.C. §§ 2000e(j) and 2000e-2(a)(1), which, read together, define unlawful discrimination “with respect to … terms, conditions, or privileges of employment” to include the failure to reasonably accommodate an employee’s religious observance, practice, or belief, absent undue hardship. See supra at 9. Moreover, although Storey, Townley Engineering, and Reed all predate Abercrombie, the Sixth Circuit’s analysis in Reed is actually incompatible with Abercrombie because it frames the proof standard for a Title VII religious failure-to-accommodate claim differently from a “disparate treatment” claim. 569 F.3d at 580 (holding that Reed’s failure-to-accommodate claim failed because he could not establish “discharge or discipline” element of third prong of prima facie case; “although an employer or union may not dole out accommodations in a discriminatory fashion, … Reed explicitly has disavowed any disparate treatment claim.”); see also id. at 584-85 (McKeague, J., dissenting) (noting disagreement with recent Sixth Circuit precedent suggesting a heightened burden of proof for failure-to-accommodate claims vis-à-vis disparate treatment claims under Title VII).

This Court should join the Third and Ninth Circuits in adopting the standard most consistent with the text and purpose of Title VII and refusing to impose an additional “adverse action” requirement on religious failure-to-accommodate claims. As this Court has observed, “Title VII does not contemplate asking employees to sacrifice their jobs to observe their religious practices. At the risk of belaboring the obvious, Title VII aimed to ensure that employees would not have to sacrifice their jobs to observe their religious practices.” Adeyeye, 721 F.3d at 456. An extrinsic adverse action prerequisite for Title VII plaintiffs in failure-to-accommodate cases is plainly incompatible with that “obvious” aim.

CONCLUSION

For the foregoing reasons, the district court judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B). This brief contains 4,325 words, from the Statement of Interest though the Conclusion, as determined by the Microsoft Word for Office 365 word processing program, with 14-point proportionally spaced type for text and footnotes.