Washington State Supreme Court's Decision on Religious Accommodation: What It Means for Employers

by Stoel Rives LLP
Contact

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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP
Contact
more
less

Stoel Rives LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.