CACI No. 2560. Religious Creed Discrimination - Failure to Accommodate - Essential Factual Elements (Gov. Code, § 12940(l))

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/her/nonbinary pronoun] by failing to
reasonably accommodate [his/her/nonbinary pronoun] 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 explore available reasonable
alternatives of accommodating [name of plaintiff], including
excusing [name of plaintiff] from duties that conflict with [name of
plaintiff]’s religious [belief/observance] or permitting those duties
to be performed at another time or by another person, or
otherwise reasonably accommodate [name of plaintiff]’s religious
6. [or]
6. [That [name of defendant] [terminated/refused to hire] [name of
plaintiff] in order to avoid having to accommodate [name of
plaintiff]’s religious [belief/observance];]
7. That [name of plaintiff]’s failure to comply with the conflicting job
requirement was a substantial motivating reason for
7. [[name of defendant]’s decision to [discharge/refuse to hire/[specify
other adverse employment action]] [name of plaintiff];]
7. [or]
7. [[name of defendant]’s subjecting [him/her/nonbinary pronoun] to
an adverse employment action;]
7. [or]
7. [[his/her/nonbinary pronoun] constructive discharge;]
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/nonbinary pronoun] harm.
A reasonable accommodation is one that eliminates the conflict between
the religious practice and the job requirement.
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.
New September 2003; Revised June 2012, December 2012, June 2013, November
2019, May 2020
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).)
Regulations provide that refusing to hire an applicant or terminating an employee in
order to avoid the need to accommodate a religious practice constitutes religious
creed discrimination. (Cal. Code Regs., tit. 2, § 11062.) Give the second option for
element 6 if the plaintiff claims that the employer terminated or refused to hire the
plaintiff to avoid a need for accommodation.
Element 7 requires that the plaintiff’s failure to comply with the conflicting job
requirement be a substantial motivating reason for the employers adverse action.
(See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d
392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
Explained.) Read the first option if there is no dispute as to whether the employers
acts constituted an adverse employment action. Read the second option and also
give CACI No. 2509, “Adverse Employment Action” Explained, if whether there
was an adverse employment action is a question of fact for the jury. If constructive
discharge is alleged, give the third option for element 7 and also give CACI No.
2510, “Constructive Discharge” Explained.
Federal courts construing Title VII of the Civil Rights Act of 1964 have held that
the threat of an adverse employment action is a violation if the employee acquiesces
to the threat and foregoes religious observance. (See, e.g., EEOC v. Townley
Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no case has
been found that construes the FEHA similarly, element 7 may be modified if the
court agrees that this rule applies. In the first option, replace “decision to” with
“threat to.” Or in the second option, “subjecting [name of plaintiff] to” may be
replaced with “threatening [name of plaintiff] with.”
Sources and Authority
Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l).
Scope of Religious Protection. Government Code section 12926(p).
Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).
Reasonable Accommodation and Undue Hardship. Cal. Code Regs., tit. 2,
§ 11062.
“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 employers 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 employers 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.)
“Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p. 232, original
“We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for cause.” (Harris,supra, 56 Cal.4th at p. 229.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 967,
1028, 1052, 1054
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
California Fair Employment And Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610-7:611,
7:631-7:634, 7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71-2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996)
Religion, pp. 219-224, 226-227; id. (2000 supp.) at pp. 100-101

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