Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply -- and all employers are now subject to suit for such claims in Washington state courts.
Kumar v. Gate Gourmet, Inc. followed substantial confusion resulting from a 2012 opinion from the Washington State Court of Appeals, Short v. Battle Ground School District. The Court of Appeals had recognized that the Washington Law Against Discrimination (“WLAD”) treats religion differently than Title VII of the Civil Rights Act. With nothing in the text of the WLAD, or the regulations issued by the Human Rights Commission, imposing an obligation to reasonably accommodate religious practices, the Court of Appeals had concluded that Washington law did not go as far as federal law in this regard. It was in this context that the class plaintiffs filed their claim in Kumar. The class action alleged that their employer, Gate Gourmet, would not allow them to bring their own food into work for security reasons, but that Gourmet would not label or adapt its menu to accommodate their religious practices. The plaintiffs presented four distinct claims: failure to accommodate under WLAD, disparate impact under WLAD, common law battery, and negligent infliction of emotional distress. In large part because of Short, the superior court dismissed the lawsuit entirely. Plaintiffs appealed directly to the Supreme Court.
The Court began its analysis by identifying the similarities between WLAD and Title VII, consistent with the Washington courts’ general practice of looking to federal case law as persuasive authority in interpreting the WLAD. The Court concluded that when Congress amended Title VII to expressly require employers to accommodate religious practices, Congress was clarifying rather than modifying the statute. The Court also drew support from its reading of disparate impact theory, concluding that the law barred practices that were discriminatory in effect as well as intent. The Court held that WLAD creates a cause of action for both reasonable accommodation and disparate impact.
The Court then went on to articulate the prima facie case of failure to accommodate: the plaintiff must demonstrate: (1) bona fide religious belief or practice that conflicted with an employment duty; (2) notice to the employer of the conflict; and (3) the employer threatened or subjected the employee to discriminatory treatment. The employer may then defend against the claim by showing that it offered the employee a reasonable accommodation or that the accommodation would create an “undue hardship” on the employer. The Court concluded that the appellants had pled a prima facie case for failure to accommodate.
The Court next turned to plaintiff’s claim of disparate impact discrimination. With little further analysis, the Court concluded that plaintiffs had articulated an independent cause of action for disparate impact. In the Court’s view, all that was required for a claim for disparate impact is (1) a facially neutral employment practice that (2) falls more harshly on a protected class. Again, the Court felt that plaintiffs had satisfied this minimal showing.
Perhaps most surprising in the Court’s opinion is its conclusion that the failure to accommodate a religious-based dietary practice could constitute an intentional, offensive bodily contact sufficient to make out a claim for common law “battery.” The Court refrained from definitively saying the employer actually committed a battery in this case, but reversed the trial court’s dismissal, finding that the allegation was substantial enough to preclude summary judgment. Similarly, the Court, without much explanation, found the claim for negligent infliction of emotional distress also survived summary judgment.
The dissenting opinion, authored by Chief Justice Madsen, explained that the majority erroneously implied a cause of action for religious accommodation in WLAD in the absence of any legislative or administrative guidance; that, even assuming the claim is implied in the statute, the majority failed to properly explain the federal standard or apply it in this case; and that the majority misinterpreted “disparate impact” as a cause of action rather than a theory of discrimination.
Washington employers must therefore be prepared to respond to employee demands for reasonable accommodation of bona fide religious practices. Because Kumar arose on a motion to dismiss, the Supreme Court did not directly face a defense that the demanded accommodation poised an undue burden. The Court recognized, however, that when asked to accommodate a religious practice, an accommodation imposing more than a de minimis cost would be an undue burden. Moreover, the Court cited with approval federal cases recognizing an undue burden in proposed accommodations that conflicted with legal requirements or the interests of clients or other employees.