California Civil Jury Instructions (CACI)

2560. Religious Creed Discrimination - Failure to Accommodate—Essential Factual Elements (Gov. Code, § 12940(l))

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against him by failing to reasonably accommodate his religious [belief/observance]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was [an employer/[other covered entity]];

2. That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[other covered relationship to defendant]];

3. That [name of plaintiff] has a sincerely held religious belief that [describe religious belief, observance, or practice];

4. That [name of plaintiff]'s religious [belief/observance] conflicted with a job requirement;

5. That [name of defendant] knew of the conflict between [name of plaintiff]'s religious [belief/observance] and the job requirement;

6. That [name of defendant] did not reasonably accommodate [name of plaintiff]'s religious [belief/observance];

7. That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff] for failing to comply with the conflicting job requirement;

8. That [name of plaintiff] was harmed; and

9. That [name of defendant]'s failure to reasonably accommodate [name of plaintiff]'s religious [belief/ observance] was a substantial factor in causing [his/her] harm.

If more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith.

Directions for Use

If element 1 is given, the court may need to instruct the jury on the statutory definition of "employer" under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)-(d).)

Sources and Authority

Government Code section 12940(l) provides that it is an unlawful employment practice "[f]or an employer . . . to refuse to hire or employ a person, . . . or to discharge a person from employment, . . . or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance . . . but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer . . . . Religious belief or observance . . . includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance."

Government Code section 12926(o) provides: " 'Religious creed,' 'religion,' 'religious observance,' 'religious belief,' and 'creed' include all aspects of religious belief, observance, and practice."

The Fair Employment and Housing Commission's regulations provide: " 'Religious creed' includes any traditionally recognized religion as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. Religious creed discrimination may be established by showing: . . . [t]he employer or other covered entity has failed to reasonably accommodate the applicant's or employee's religious creed despite being informed by the applicant or employee or otherwise having become aware of the need for reasonable accommodation." (Cal. Code Regs., tit. 2, § 7293.1(b).)

The Fair Employment and Housing Commission's regulations provide: "An employer or other covered entity shall make accommodation to the known religious creed of an applicant or employee unless the employer or other covered entity can demonstrate that the accommodation is nreasonable because it would impose an undue hardship." (Cal. Code Regs., tit. 2, § 7293.3.)

"In evaluating an argument the employer failed to accommodate an employee's religious beliefs, the employee must establish a prima facie case that he or she had a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement . . . . Once the employee establishes a prima facie case, then the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship." (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 [58 Cal.Rptr.2d 747], internal citation omitted.)

"Any reasonable accommodation is sufficient to meet an employer's obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. The reasonableness of the employer's efforts to accommodate is determined on a case by case basis . . . . '[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee's proposed accommodations would result in undue hardship.' '[W]here the employer has already reasonably accommodated the employee's religious needs, the . . . inquiry [ends].' " (Soldinger, supra, 51 Cal.App.4th at p. 370, internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, §§ 739 and 763, pp. 224-225, 264-265; id. (2002 supp.) at § 763, pp. 168-169

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)

1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Religion, pp. 219-224, 226-227; id. (2000 supp.) at pp. 100-101

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2.68, pp. 87-88

(New September 2003)