WPI 330.42 Employment Discrimination—Discrimination Based on Religion or Creed—Failure to Accom...
6A WAPRAC WPI 330.42Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.42 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.42 Employment Discrimination—Discrimination Based on Religion or Creed—Failure to Accommodate—Defense of Undue Hardship—Burden of Proof
(Name of employer)is not obligated to accommodate(name of employee)'s religious [belief/observance/practice] if providing such accommodation would cause undue hardship to(name of employer)'s business.(Name of employer)has the burden of proving its undue hardship defense.
An accommodation causes an “undue hardship” when it would have more than an insignificant effect on the business.
If you decide that(name of employer)has proven its undue hardship defense as to each accommodation, then your verdict should be for(name of employer)on this claim.
NOTE ON USE
Use with WPI 330.40 (Employment Discrimination—Religious Discrimination based on Failure to Accommodate—Definition) and WPI 330.41 (Employment Discrimination—Discrimination Based on Religion and Creed—Reasonable Accommodation—Burden of Proof) when appropriate.
This instruction was modified for this edition to clarify the burden of proof.
In Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (2014), the Washington Supreme Court recognized the claim of failure to accommodate a religious practice, subject to the defense that the employer either offered the employee a reasonable accommodation or that doing so would have caused it an “undue hardship.” This defense arises under a 1972 amendment to Title VII expressly articulating the reasonable accommodation rule, which had previously been derived from EEOC regulations. 42 U.S.C. § 2000e(j). The term undue hardship was left undefined.
In 1977, the United States Supreme Court held that an undue hardship results whenever an accommodation requires an employer “to bear more than a de minimis cost.” Kumar, 180 Wn.2d at 502 (quoting Trans World Airlines, Inc. v Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)). The Kumar court added:
And other courts have held that an undue hardship may be something other than a financial burden. An employer can defeat a religious accommodation claim by showing that valid concerns other than money—e.g., legal obligations or the interests of clients or other employees—would be unduly burdened by an accommodation.
Kumar, 180 Wn.2d at 502. But see Tamosaitis v. URS Inc., 781 F.3d 468, 482–83 (9th Cir. 2015) (deference to a customer's discriminatory preference is itself discriminatory).
The definition of “undue hardship” is based on the extensive EEOC regulations and guidance interpreting and exploring the boundaries of undue hardship and “de minimis” cost with respect to religious discrimination. EEOC Compliance Manual, Number 915.003, Section 12-IV (B and C) (2008). Relevant portions of the EEOC Compliance Manual discussion regarding undue hardship is paraphrased from EEOC Compliance Manual, Number 915.003, Section 12-IV (B).
Whether a proposed accommodation imposes an undue hardship turns on the particular factual context of each case. Relevant factors may include the type of workplace, the nature of the employee's duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.
An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation.
The employer must also demonstrate that the accommodation would require more than de minimis cost. Factors to be considered are the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation. Generally, the payment of administrative costs necessary for an accommodation will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer.
Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer's business. Whether the proposed accommodation conflicts with another law will also be considered. See also the Washington State Human Rights Commission Guide to Religion and Washington State Non-Discrimination Laws, pages 3–4, updated July 2015.
[Current as of March 2021.]
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