California Civil Jury Instructions (CACI)

2561. Religious Creed Discrimination - Reasonable Accommodation—Affirmative Defense—Undue Hardship

[Name of defendant] claims that its failure, if any, to accommodate [name of plaintiff]'s religious [belief/observance] was justified because any accommodation would have caused undue hardship. To succeed, [name of defendant] must prove both of the following:

1. That [name of defendant] explored available ways to accommodate [name of plaintiff]'s religious [belief/ observance], including excusing [him/her] from duties that conflict with [his/her] religious [belief/observance] or permitting those duties to be performed at another time or by another person; and

2. That [name of defendant] was unable to accommodate [name of plaintiff]'s religious [belief/observance] without causing undue hardship on the conduct of [name of defendant]'s business.

An accommodation causes an "undue hardship" when it would have more than an insignificant effect on the business.

Directions for Use

Note that the terms "reasonable accommodation" and "undue hardship" do not have the same meanings under religious discrimination and disability discrimination laws as interpreted by California and federal courts. Because an employer has a competing duty to avoid religious preferences, the duty to accommodate an employee's religious beliefs presents a lesser burden than the duty to accommodate an employee's disability.

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 equirement, 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."

"If the employee proves a prima facie case and the employer fails to initiate an accommodation for the religious practices, the burden is then on the employer to prove it will incur an undue hardship if it accommodates that belief. '[T]he extent of undue hardship on the employer's business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.' . . . '[A]n accommodation causes "undue hardship" whenever that accommodation results in "more than a de minimis cost" to the employer.' " (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 371 [58 Cal.Rptr.2d 747], internal citations omitted.)

"It would be anomalous to conclude that by 'reasonable accommodation' Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far . . . . Alternatively, the Court of Appeals suggested that [the employer] could have replaced [plaintiff] on his Saturday shift with other employees through the payment of premium wages . . . . To require [the employer] to bear more than a de minimus cost . . . is an undue hardship. Like abandonment of the seniority system, to require [the employer] to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion." (Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63, 81, 84 [97 S.Ct. 2264, 53 L.Ed.2d 113], footnote omitted.)

Secondary Sources

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.52[4] (Matthew Bender)

1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Religion, pp. 227-234; id. (2000 supp.) at pp. 100-105

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.35[2][a]-[c], 115.54, 115.91 (Matthew Bender)

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

(New September 2003)