California Civil Jury Instructions (CACI) (2017)

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

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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] by failing to reasonably accommodate
[his/her] 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 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/[other
adverse employment action]] [name of plaintiff]];]
7. [or]
7. [[name of defendant]’s subjecting [him/her] to an adverse
employment action;]
7. [or]
7. [[his/her] 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] 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.
New September 2003; Revised June 2012, December 2012, June 2013
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).)
Element 7 requires that the plaintiff’s failure to comply with the conflicting job
requirement be a substantial motivating reason for the employer’s 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 employer’s
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, a threat of discharge or
discipline may be inserted as an “other adverse employment action.” Or in the
second option, “subjected [name of plaintiff] to” may be replaced with “threatened
[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).
• 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 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.)
• “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 (10th ed. 2005) Constitutional Law, §§ 876,
922, 940, 941
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