May 22

Shannon Ragonesi

WA Supreme Court holds state law creates a cause of action for failure to accommodate an employee's religious practices

by Shannon Ragonesi

The Washington state supreme court has just held that the Washington Law Against Discrimination (WLAD) creates a cause of action against an employer for failure to reasonably accommodate an employee’s religious practices.  In Kumar v. Gate Gourmet, Inc., the court stated a plaintiff establishes a prima facie claim of failure to accommodate religious practices by showing (1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties; (2) he or she informed the employer of the beliefs and the conflict; and (3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment.                    

In reaching this holding, the majority noted that statutory silence on the question of whether employers must reasonably accommodate employees’ religious practices does not mean it is not required under the WLAD.  Likewise, the majority commented the mere fact that the Washington Human Rights Commission has not promulgated rules affirmatively requiring employers to accommodate religious practices of its employees does not mean it is not required under the WLAD.  The court concluded the legislature intended RCW 49.60.180 to require an implicit duty to reasonably accommodate religious practices, and did not intend to afford less protection against religious discrimination than it provides for other forms of discrimination. 

The state supreme court further held the WLAD has the goal of barring employment practices that produce “disparate impacts” on employees in a protected class based on their religious practices unless the employee can show the challenged employment practice serves a “business necessity.” 

The split decision authored by Justice Sheryl Gordon McCloud (with concurrence by Justices Charles Wiggins, Debra Stephens, Steven Gonzalez and Mary Fairhurst) goes on to explain that an employer can present a defense to a claim of failure to accommodate a religious practice by showing it offered the employee a reasonable accommodation; or that an accommodation would be an “undue hardship” on the employer.  The court noted the United States Supreme Court has ruled that an undue hardship results whenever an accommodation requires an employer to bear more than a de minimis cost.  The court further stated the U.S. Supreme Court has ruled that a reasonable accommodation need not be the precise accommodation the employee requests, even if the employer could provide that accommodation without suffering any undue hardship.  Finally, the court pointed out the fact that other courts have held an undue hardship may be something other than a financial burden; for example, legal obligations, the interests of clients, or other employees who would be unduly burdened by an accommodation.

Justice Barbara Madsen wrote a dissenting opinion (joined by Justices Charles Johnson, Susan Owens, and James Johnson, Justice Pro Tem) and maintains the majority’s decision was incorrect to imply a cause of action for religious accommodation where neither the legislature nor any administrative agency has spoken on the issue of religious accommodation.  Madsen states it is important to remember that a cause of action for discrimination in private employment is based on statutory authority, and it is not the role of the judiciary to second guess the wisdom of the legislature’s failure to speak on the issue of religious accommodation.  The dissent comments that judicial law making of the type engaged in by the majority gives no notice to parties and provides no opportunity for public input to help vet the consequences. 

The dissent also argues that the majority misapplies the prima facie elements of a claim of failure to accommodate a religious practice.  According to the dissent, to state a prima facie case of failure to accommodate under Title VII, an employee must show (1) the employee holds a bona fide religious belief, (2) the employee informed the employer of that belief, and (3) the employee was disciplined for failing to comply with the conflicting employer policy.  This requires the existence of a cognizable employment harm to sustain a valid accommodation claim.  Yet, the majority opinion suggests that the appellant in this case has established a prima facie case without alleging any actual or threatened adverse employment action.  Therefore, the dissent believes the appellant cannot maintain a claim of failure to accommodate under the required elements. 

See full opinion at

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