California Civil Jury Instructions (CACI) (2017)

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

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2561.Religious Creed Discrimination—Reasonable
Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, §§ 12940(l)(1), 12926(u))
Please see CACI No. 2545, Disability Discrimination—Affirmative
Defense—Undue Hardship.
New September 2003; Revoked December 2012; Restored and Revised June 2013
Directions for Use
“Undue hardship” for purposes of religious creed discrimination is defined in the
same way that it is defined for disability discrimination. (See Gov. Code,
§§ 12940(l)(1), 12926(u).) CACI No. 2545, Disability Discrimination—Affırmative
Defense—Undue Hardship, may be given in religious accommodation cases also.
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l)(1).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “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.’ . . .” (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.” (TWA v. Hardison (1977) 432 U.S. 63,
81, 84 [97 S.Ct. 2264, 53 L.Ed.2d 113], footnote omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 921
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
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California Fair Employment and Housing Act, ¶¶ 7:215, 7:305, 7:610, 7:631,
7:640–7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35[2][a]–[c], 115.54, 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Religion,
pp. 227–234 (2000 supp.) at pp. 100–105
2562–2569. Reserved for Future Use
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2561
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