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      DAiE         MAY 2 2 2014

~~~

     IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 JAMES KUMAR, RANVEER SINGH,                        NO. 88062-0
 ASEGEDEW GEFE, ABBAS KOSYMOV,
 individuals, on behalf of themselves and all       ENBANC
 others similarly situated,

                                     Appellants,    Filed    MAY 2 2 2014

                         v.

 GATE GOURMET, INC., a Delaware
 Corporation,

                                     Respondent.



                GORDON McCLOUD, I.-Appellants James Kumar, Ranveer Singh,

Asegedew Gefe, and Abbas Kosymov brought a class action lawsuit against their

employer, Gate Gourmet Inc., alleging two common law torts and two violations of

Washington's Law Against Discrimination (the WLAD), chapter 49.60 RCW. The

lawsuit stems from Gate Gourmet's employee meal policy, which bars employees

from bringing in their own food for lunch (for security reasons), leaving only

employer-provided food for the employees to eat. According to the plaintiffs, the
Kumar v. Gate Gourmet, Inc., No. 88062-0



policy forces them to work without food or eat food that violates their religious

beliefs. The trial court dismissed the lawsuit in its entirety, finding that the WLAD

contains no requirement that employers make reasonable accommodations for their

employees' religious practices. We granted direct review and now reverse.



      The plaintiffs in this action (the employees) work near SeaTac airport for the

defendant, Gate Gourmet, preparing meals for service on trains and airplanes. Due

to security concerns, the employees can neither bring food with them to work nor

leave the premises to obtain food during their 30-minute lunch break. Instead, Gate

Gourmet provides meals for employees to consume during their break. These meals

ostensibly consist of one vegetarian and one meat-based main dish. The employees

allege, however, that Gate Gourmet uses animal by-products in the "vegetarian"

option.    Clerk's Papers (CP) at 14.       They also allege that they informed Gate

Gourmet that their various religious beliefs prohibited them from eating the beef-

pork meatballs the company served, that Gate Gourmet responded by temporarily

switching to turkey meatballs, that the company later switched back to the beef-pork



       1
        The trial court dismissed for failure to state a claim. For purposes of this analysis,
therefore, we assume the truth of the plaintiffs' allegations. Cutler v. Phillips Petroleum
Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994) (when reviewing a trial court's dismissal
for failure to state a claim, the appellate court presumes the truth of the plaintiffs
allegations).

                                             -2-
'
Kumar v. Gate Gourmet, Inc., No. 88062-0



mixture without notifying the employees, and that it now refuses to alter the

employee meals. Finally, the complaint alleges harm. It claims that the employees

"caused the plaintiffs ... harm by deliberately refusing to accommodate their

religious and moral beliefs." Id. In particular, the complaint alleges that Gate

Gourmet's alleged deception caused "putative class members [to] unknowingly

eat[] food forbidden by their beliefs," CP at 19, and that class members "have faced

the choice of eating food forbidden by their sincerely held beliefs or not eating, have

suffered offensive touching due to their contact with food prohibited by their beliefs,

and have suffered distress as a result." CP at 22.

          The employees brought a class action lawsuit alleging that Gate Gourmet's

knowing refusal to label and "adapt[] its menu to accommodate the tenets of [their]

    beliefs and religions" violated the WLAD. CP at 21. This allegation is based on

    two distinct theories: (1) that Gate Gourmet's meal policy constituted a failure to

    reasonably accommodate the employees' religious practices and (2) that the meal

    policy has a disparate impact on employees who adhere to certain religions. The

    employees' complaint also states claims for the common law torts of battery and

    negligent infliction of emotional distress. 2


          2
            It does not state any claims under Title VII of the Civil Rights Act of 1964 but
    reserves the employees' right to do so in the future. Pub. L. 88-352, 78 Stat. 241, 255
    (1964); 42 U.S.C. § 2000e-2(a).



                                               -3-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      The trial court granted in full Gate Gourmet's CR 12(b)(6) motion to dismiss

the complaint. CP at 118-20. It concluded that under Short v. Battle Ground School

District, 169 Wn. App. 188, 279 P.3d 902 (2012), the WLAD provides no cause of

action for failure to reasonably accommodate religious practices. CP at 119. The

order of dismissal contains no discussion of the disparate impact, battery, or

negligence claims; in fact, the CR 12(b)(6) motion contains no discussion of the

disparate impact claim. Id. The employees sought and obtained direct review by

this court.

                                       ANALYSIS

                                 STANDARD OF REVIEW

       All of the issues presented in this case are reviewed de novo. 3 "Under CR

12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible

that facts could be established" that would support relief. McCurry v. Chevy Chase

Bank, FSB, 169 Wn.2d 96, 101, 23 P.3d 861 (2010).

       1. Does the WLAD require covered employers to make reasonable
          accommodations for their employees ' religious practices?

              a. The WLAD creates a private cause of action for employment
                 discrimination on the basis of religion


       3McKee   v. AT&T Corp., 164 Wn.2d 372, 387, 191 P.3d 845 (2008) (legal
conclusions are reviewed de novo); Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206
(2001) (trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de novo (citing
Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998))).

                                             -4-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      As originally enacted in 1949, the WLAD prohibited employers from

discriminating on the basis of"race, creed, color, or national origin." LAWS OF 1949,

ch. 183, § 7. Today, it prohibits discrimination on the basis of those traits as well as

"sex, marital status, sexual orientation ... honorably discharged veteran or military

status, or the presence of any sensory, mental or physical disability or the use of a

trained dog guide or service animal by a person with a disability."                      RCW

49.60.180(1). Washington courts have long equated the term "creed" in the WLAD

with the term "religion" in Title VII of the Civil Rights Act of 1964 (Title VII). 4 The

parties agree that the term "creed" in the WLAD refers to religious belief.

       Since its enactment, the WLAD has been administered by the Washington

Human Rights Commission (HRC). The HRC has the power to "adopt, amend, and

rescind suitable rules to carry out [its] provisions ... and the policies and practices

of the commission in connection therewith." RCW 49.60.120(3). In 1973, the

WLAD was amended to create a private cause of action against any employer

engaging in an "unfair practice." Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788

(1996); id. at 78 & n.3 (Talmadge, J., dissenting). RCW 49.60.180(3) now provides


       4See   Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 61-62, 837 P.2d 618 (1992)
(stating that "Title VII of the Civil Rights Act of 1964 is the federal counterpart to our state
law" and referring to "federal and state law against religious discrimination") (emphasis
added). Accord Riste v. E. Wash. Bible Camp, Inc., 25 Wn. App. 299, 302, 605 P.2d 1294
(1980) (finding the term "creed," as used in the WLAD, to mean "a system of religious
beliefs").

                                              -5-
Kumar v. Gate Gourmet, Inc., No. 88062-0



in relevant part that it is an "unfair practice" for an employer "[t]o discriminate

against any person in compensation or in other terms or conditions of employment

because of age, sex, marital status, sexual orientation, race, creed, color [or] national

origin .... " The employees brought their class action suit under this provision.

             b. Washington courts look to federal antidiscrimination law to help them
                construe the WLAD' s provisions

      In the employment context, the WLAD has three federal counterparts: Title

VII, the Age Discrimination in Employment Act (ADEA), 5 and the Americans with

Disabilities Act (ADA). 6 Title VII has prohibited employment discrimination on the·

basis of"race, color, religion, sex, or national origin, [etc.]" since 1964,7 the ADEA

has prohibited discrimination against older workers since 1967, and the ADA ?as

prohibited employment discrimination on the basis of disability since 1990. The

WLAD 's employment provisions were amended in 1961 to prohibit age




       5
        Age Discrimination in Employment Act of 1967, Pub. L. 90-202, 81 Stat. 602, 603
(1967); 29 U.S.C. § 623(a).

       6
       American with Disabilities Act of 1990, Pub. L. 101-336, 104 Stat. 327, 331
(1990); 42 U.S.C. § 12111(a). Before Congress passed the ADA, Section 504 of the
Rehabilitation Act of 1973 prohibited discrimination on the basis of disability in "any
program or activity receiving federal financial assistance." Pub. L. 93-112, 87 Stat. 357
(1973). The WLAD's prohibitions on disability discrimination predate the Rehabilitation
Act by several months.

       7
           42 U.S.C. § 2000e-2(a).



                                           -6-
Kumar v. Gate Gourmet, Inc., No. 88062-0



discrimination, 8 in 1971 to prohibit sex discrimination, 9 and in 1973 to prohibit

discrimination on the basis of marital status 10 and disability. 11        Thus, in every

category but sex-based discrimination, our state WLAD's prohibitions predate their

federal counterparts. 12

      Even though almost all of the WLAD's prohibitions predate Title VII's, the

ADA's, and the ADEA's, Washington courts still look to federal case law

interpreting those statutes to guide our interpretation of the WLAD .13 Federal cases



       8
       LAWS OF 1961, ch. 100, § 1.

       9
           LAWS OF 1971, 1st Ex. Sess., ch. 81, § 3.

       10
            LA WS OF 1973, ch. 141, § 10.

       11
            LAWS OF 1973, 1st Ex. Sess., ch. 214, § 6.

       12
         Note, however, that Title VII afforded employees a private cause of action for
discrimination nine years earlier than the WLAD did, and the ADEA five years earlier. 42
U.S.C. § 2000e-2(a) (creating private cause of action for violation of Title VII); LAWS OF
1973, ch. 141, § 3 (creating private cause of action for violation of the WLAD); 29 U.S.C.
§ 623( a) (creating private cause of action for violation of ADEA).

       13
         Robel v. Roundup Corp., 148 Wn.2d 35, 44-45, 59 P.3d 611 (2002) (looking to
federal cases interpreting Title VII and the ADA to determine whether the WLAD supports
a disability claim based on a hostile work environment); Grimwood v. Univ. of Puget
Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988) (looking to federal cases
interpreting the ADEA to determine criteria for establishing an age discrimination claim
under the WLAD); Fahn v. Cowlitz County, 93 Wn.2d 368, 376-82, 610 P.2d 857, 621
P .2d 1293 (1980) (looking to federal case law interpreting Title VII to determine the extent
of the Human Rights Commission's authority to prohibit a facially neutral hiring policy
with disparate impact on women and applicants of certain national origins).



                                               -7-
Kumar v. Gate Gourmet, Inc., No. 88062-0



are not binding on this court, which is "free to adopt those theories and rationale

which best further the purposes and mandates of our state statute." Grimwood v.

Univ. ofPuget Sound, Inc., 110 Wn.2d 355,361-62, 753 P.2d 517 (1988). Where

this court has departed from federal antidiscrimination statute precedent, however,

it has almost always ruled that the WLAD provides greater employee protections

than its federal counterparts do. 14

          c. In Short, the Court of Appeals concluded that Washington's WLAD
             provides fewer protections against religious discrimination than Title
             VII does

       While Title VII has explicitly required employers to make "reasonable

accommodations" for employees' religious practices since 1972, 15 the WLAD lacks


       14See Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 359,20 P.3d 921 (2001)
(noting that the WLAD covers a broader range of employers than does Title VII); Martini
v. Boeing Co., 137 Wn.2d 357, 372-73, 971 P.2d 45 (1999) (noting that the WLAD's
express liberal interpretation mandate and greater damages provisions distinguish it from
Title VII); Marquis v. City ofSpokane, 130 Wn.2d 97, 110-11, 922 P.2d 43 (1996) (finding
that the WLAD creates a cause of action for discrimination against independent contractors
on the basis of sex, race, national origin, religion, or disability, partly on the basis that the
WLAD prohibits discrimination in a broader range of contexts than does Title VII). But
see Daileyv. N. Coast Life Ins. Co., 129 Wn.2d 572,575-76,919 P.2d 589 (1996) (finding
that the WLAD does not incorporate ostensible amendments to Title VII authorizing
punitive damages, partly on the basis that Washington courts require express statutory
authorization for exemplary damages).
       15 Pub. L. 92-261, 86 Stat. 103 (1972). This requirement appears in Title VII's
definition of "religion," which has read as follows since the 1972 amendment:

       The term "religion" includes all aspects of religious observance and practice,
       as well as belief, unless an employer demonstrates that he is unable to
       reasonably accommodate to an employee's or prospective employee's

                                               -8-
Kumar v. Gate Gourmet, Inc., No. 88062-0



such an express requirement. In Hiatt v. Walker Chevrolet Co., this court noted that

difference and "specifically disapprove[ d]" a Court of Appeals opinion that

"assume[ d]" the WLAD provided the same protections against religious

discrimination that Title VII provides. 120 Wn.2d 57, 64, 837 P.2d 618 (1992).

      But the Hiatt court expressly declined to decide whether the WLAD requires

employers to reasonably accommodate their employees' religious practices, because

doing so was not necessary to resolve the case before it. !d. Hiatt only provided an

overview of that "important issue." Id. It noted that the issue had arisen in several

other jurisdictions in which state antidiscrimination statutes analogous to the

WLAD's prohibited religious discrimination but did not affirmatively require

accommodations. !d. at 63. The Hiatt court found these jurisdictions evenly split:

in three, courts had found a reasonable-accommodation-for-religion requirement

implicit in their state's antidiscrimination statutes but in three others courts had

found no such implicit requirement. 16 Ultimately, the Hiatt court concluded only

that "[s]trong arguments can be presented on both sides of the issue." Id.


      religious observance or practice without undue hardship on the conduct of
      the employer's business.

       42 U.S.C. § 2000eG).
       16
        120 Wn.2d at 63 n.6 (citing King v. Iowa Civil Rights Commission, 334 N.W.2d
598, 601-02 (Iowa 1983), Rankins v. Commission on Professional Competence, 24 Cal. 3d
167, 171-74, 593 P.2d 852, 154 Cal. Rptr. 907 (1979), and Wondzell v. Alaska Wood

                                           -9-
Kumar v. Gate Gourmet; Inc., No. 88062-0



      In Short, 169 Wn. App. 188, the case on which the trial court below relied

when it dismissed the employees' claims, Division Two of the Court of Appeals

answered the question that Hiatt left open. It held that the WLAD does not require

employers to make reasonable accommodations for their employees' religious

practices. Id. at 202. The Short court based this conclusion primarily on three

factors: (1) the absence of an express reasonable-accommodation-for-religion

requirement in the WLAD, (2) the fact that the WLAD's prohibition on religious

employment discrimination predates Title VII's by 15 years, and (3) the HRC's

failure to promulgate any rules containing such a requirement. I d. at 202-03.

          d. We disapprove the Short court's analysis

      The first factor the Short court cited-the WLAD's lack of an express

reasonable accommodation mandate-is not persuasive. As discussed in detail in

part (e) below, courts interpreting such silence in religious antidiscrimination law as

endorsing rather than barring this particular antidiscrimination theory have the more

persuasive argument.




Products, Inc., 583 P.2d 860, 863 (Alaska 1978) as examples of cases finding an implicit
reasonable accommodation requirement, and American Motors Corp. v. Department of
Industry, Labor & Human Relations, 101 Wis.2d 337, 345-50, 305 N.W.2d 62 (1981), Olin
Corp. v. Illinois Fair Employment Practices Commission, 34 Ill. App. 3d 868, 876, 341
N.E.2d 459 (1976), aff'd, 67 Ill. 2d 466, 367 N.E.2d 1267, 10 Ill. Dec. 501 (1977), and
Corey v. Avco-Lycoming Division, Avco Corp., 163 Conn. 309, 322-23, 307 A.2d 155
(1972) as examples of cases finding no such requirement).

                                           -10-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      The second factor upon which the Short court relied-the WLAD's enactment

15 years before Title VII-is not persuasive because we have never considered

chronology when looking to federal case law to help interpret the WLAD. Rather,

we have relied on federal civil rights jurisprudence where doing so "further[s] the

purposes and mandates of [the WLAD]." Grimwood, 110 Wn.2d at 362. This court

has therefore consulted federal case law in the contexts of age, 17 race, 18 and

disability 19 discrimination even though the WLAD's provisions on age, race, and

disability were enacted well before their federal counterparts. Thus, the fact that the

WLAD's provisions on "creed" predate Title VII does not preclude this court's

reliance on federal law to interpret those provisions.

       The third factor upon which the Short court relied-the HRC's failure to

promulgate rules requiring employers to reasonably accommodate employees'

religious practices-is not persuasive because the agency's silence does not

constitute an interpretation of the WLAD. It is certainly true that an administrative


       17Allison v. Hous. Auth., 118 Wn.2d 79, 821 P.2d 34 (1991) (looking to ADEA to
determine criteria for establishing an age discrimination case under the WLAD).

       18
          0/iver v. Pac. Nw. Bell Tel. Co., 106 Wn.2d 675, 678, 724 P.2d 1003 (1986)
(stating, in racial discrimination case, that "decisions interpreting [Title VII] are persuasive
authority for the construction of [the WLAD]").

       19Robel,  148 Wn.2d at 43 ("[t]o determine whether the [WLAD] supports a
disability claim based on a hostile work environment, we may look to federal cases
construing analogous federal statutes" such as the ADA (citing Fahn, 93 Wn.2d at 376)).

                                              -11-
Kumar v. Gate Gourmet, Inc., No. 88062-0



agency's silence must be deemed significant where it admits of only one reasonable

interpretation. 20 Here, however, the HRC's silence regarding an employer's duty to

accommodate religious practices is subject to more than one reasonable

interpretation. It might indicate that the agency believes the WLAD imposes no such

duty. But it might also indicate the opposite-that the agency assumes the WLAD

imposes exactly the same duty to accommodate religious practices that Title VII

does and thus needs no regulatory clarification. Indeed, the HRC's amicus brief in

this case says exactly that; the HRC explains that it "has not doubted that the

[WLAD] includes a religious accommodation requirement, and thus did not deem a

rule on the subject necessary." Br. of Amicus Curiae HRC at 15. 21

      Moreover, just as an agency cannot promulgate a rule that exceeds its statutory

mandate, 22 neither can it diminish statutory protections by failing to act. Gate

Gourmet makes much of the fact that the HRC has promulgated rules requiring



      20
         See S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 345, 102 S. Ct.
1815, 72 L. Ed. 2d 114 (1982) (where agency historically engaged in comprehensive
regulation of certain industry practices, the agency's silence regarding an affirmative
defense based on a violation of those regulations was deemed significant).

       21
         The HRC also explains that although it has not promulgated a rule expressly
requiring employers to accommodate their employees' religious practices, it has
recognized and enforced that requirement through interpretive guides and complaint
investigations. Br. of Amicus Curiae HRC at 7-8.
       22
            Ass 'n of Wash. Bus. v. Dep 't ofRevenue, 155 Wn.2d 430,437, 120 P.3d 46 (2005).

                                              -12-
Kumar v. Gate Gourmet, Inc., No. 88062-0



employers to reasonably accommodate employees with disabilities, arguing that the

HRC would have issued an identical rule mandating religious accommodations if it

believed the WLAD required them.            But the HRC 's rules did not create the

reasonable accommodation requirement for disability-they merely implemented a

requirement already inherent in the WLAD itself. See Holland v. Boeing Co., 90

Wn.2d 384, 388-89, 583 P.2d 621 (1978) (finding a reasonable-accommodation-for-

disability requirement inherent in the "legislative policy" embodied in the WLAD,

even though that statute did not employ the term "accommodation"). 23 Even if the

HRC had failed to promulgate any rules requiring reasonable accommodations for

employee disabilities, this court would still have been required to recognize that


      23
         The dissent's conclusion that Holland "relied on an existing administrative
regulation" is not accurate. Dissent at 4. While the Holland court cited the existence of
implementing regulations as support for its conclusion that the WLAD requires affirmative
accommodations for employees with disabilities, those regulations were not essential to
the court's holding. See Holland v. Boeing Co., 90 Wn.2d 384, 388-89, 583 P.2d 621
(1978) (internal citations omitted) ("[The WLAD] contains a strong statement oflegislative
policy. When, in 1973, the legislature chose to make this policy applicable to
discrimination against the handicapped, we believe it is clear it mandated positive steps be
taken. An interpretation to the contrary would not work to eliminate discrimination. It
would instead maintain the status quo."( citing RCW 49.60.010, .030)). The dissent also
errs in implying that Holland "distinguished between religious and disability
discrimination" when it recognized an implied cause of action for failure to accommodate
disability. Dissent at 4. The Holland court did not distinguish between religious and
disability discrimination for purposes of the implied cause of action. Rather, it drew that
distinction when rejecting the defendant employer's suggestion that the court import into
the disability discrimination context the "de minimus effort test" applied by the United
States Supreme Court in its seminal Title VII religious discrimination case. Holland, 90
Wn.2d at 390. See discussion of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97
S. Ct. 2264, 53 L. Ed. 2d 113 (1977), infra, pp. 15-16.

                                            -13-
Kumar v. Gate Gourmet, Inc., No. 88062-0



implicit requirement in the WLAD's provisions. See Am. Cont'l Ins. Co. v. Steen,

151 Wn.2d 512, 518, 91 P.3d 864 (2004) (in interpreting a statute, the court's

"primary objective is to ascertain and give effect to the [legislature's] intent and

purpose" (citing State v. Watson, 146 Wn.2d 947,954, 51 P.3d 66 (2002))).

      So, with or without recourse to implementing rules, this court must interpret

RCW 49.60.180 so as to give effect to the legislature's intent. In this case, that

means choosing between two competing interpretations of the statute: the

interpretation that says it implies a reasonable-accommodation-for-religion

requirement and the interpretation that says it lacks such a requirement.

          e. Under state rules of statutory interpretation and persuasive federal
             antidiscrimination case law, the WLAD implies a requirement to
             reasonably accommodate religious practices

      For help interpreting the WLAD, we look to cases applying Title VII's

prohibition against religious discrimination. See supra notes 13 and 17-19 and

accompanying text.     Gate Gourmet argues that Title VII is more protective of

employees' religious practices than is the WLAD, because Title VII was amended

in 1972 to expressly require reasonable accommodations for religion.            The

employees counter that Title VII had always imposed a reasonable accommodation

duty on the employer and that the 1972 amendment clarified (rather than expanded)




                                           -14-
Kumar v. Gate Gourmet, Inc., No. 88062-0



that implicit duty. The employees therefore conclude that the WLAD imposes the

same implicit duty to reasonably accommodate employees' religious practices.

      We agree with the employees. To explain why this is so, we provide a brief

history of the reasonable accommodation requirement, followed by an overview of

state and federal disparate impact jurisprudence.

      Shortly after Title VII was enacted in 1964, the Equal Employment

Opportunity Commission (EEOC) promulgated a rule interpreting the statute to

require employers to reasonably accommodate employees' religious practices. 29

C.P.R. § 1605.1 (1967). At that point, Title VII prohibited religious discrimination

but contained no language addressing reasonable accommodations one way or the

other. 42 U.S.C. §2000e-2(a).

      Initially the EEOC rule explicitly excluded work schedule alterations from the

category of "reasonable accommodations," meaning that an employee could not

demand time off to observe a holy day under that rule. Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 85, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977) (Marshall, J.,

dissenting) (quoting 29 C.P.R.§ 1605.1(a)(3), (b)(3)). In 1967, however, the agency

omitted the language exempting scheduling accommodations and replaced it with

language requiring any accommodation that did not impose an "'undue hardship"'

on the employer. Id. at 85-86 (quoting 29 C.P.R.§ 1605.1(b)).



                                           -15-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      As this court noted in Hiatt, Congress amended Title VII in 1972 to expressly

affirm the EEOC's reasonable accommodation rule. Hiatt, 120 Wn.2d at 62-63 &

n.5 (citing 42 U.S.C. § 2000eG); Trans World Airlines, 432 U.S. at 73). The 1972

amendment required employers to "reasonably accommodate to an employee's or

prospective employee's religious observance or practice" to the extent possible

"without undue hardship on the conduct of the employer's business." Pub. L. 92-

261, 86 Stat. 103.

      Only a few Court of Appeals cases have addressed the nature of the 1972

amendment. In Dewey v. Reynolds Metals Co., 429 F.2d 324, 334 (6th Cir. 1970),

a.ff'd by an equally divided court, 402 U.S. 689, 91 S. Ct. 2186, 29 L. Ed. 2d 267

( 1971 ), a preamendment case, the Sixth Circuit decided that the EEOC had exceeded

its statutory mandate by promulgating the reasonable accommodation requirement

because it was "not consistent" with the preamendment statute's "plain language." 24




      24 In addition to concluding that the reasonable accommodation requirement was
"not consistent" with Title VII's "plain language," the Dewey majority rejected the
requirement on constitutional avoidance grounds, worrying that it might be employed to
"coerce or compel an employer to accede to [the] religious beliefs of all of his employees"
and concluding that it therefore raised "grave constitutional questions" under the
establishment clause of the First Amendment to the United States Constitution. Dewey,
429 F.2d at 334-35. The majority also rejected the requirement on policy grounds,
predicting that employers would be "harassed by the filing of many of such claims" if the
court were to "equate religious discrimination with failure to accommodate." Id at 335.


                                           -16-
Kumar v. Gate Gourmet, Inc., No. 88062-0



By contrast, more recent Fifth and Ninth Circuit cases have treated the 1972

amendment as clarifying rather than modifying Title VII's original meaning. 25

      We find that the Fifth and Ninth Circuits' reasoning is more consistent with

the goals and prior controlling interpretations of the federal anti-discrimination

law-particularly the United States Supreme Court's decision interpreting Title VII

as barring not just employment practices based on discriminatory intent but also

employment practices that produce "disparate impacts." This is critical, because our

court has held that our Washington's LAD has those same goals and recognizes that

same "disparate impact" cause of action.

      The United States Supreme Court came to that conclusion first, in Griggs v.

Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). In that case,

the Supreme Court held that Title VII prohibits employment practices that are

discriminatory in effect as well as those based on discriminatory intent. Id. at 429-

30. The unanimous Griggs Court reasoned that Title VII's purposes could not be

achieved unless the statute was construed to bar "practices ... neutral on their face,

and even neutral in terms of intent [that] operate to 'freeze' the status quo of prior

discriminatory employment practices." Id. at 430. The Supreme Court therefore


      25
           See, e.g., Yott v. N Am. Rockwell Corp., 501 F.2d 398, 402-03 (1974) ("Th[e]
subsequent congressional affirmation strengthens our conclusion about the validity of the
[EEOC's 1967] regulation."), aff'd, 602 F.2d 904 (9th Cir. 1979); Riley v. Bendix Corp.,
464 F.2d 1113 (5th Cir. 1972).

                                           -17-
Kumar v. Gate Gourmet, Inc., No. 88062-0



held that Title VII barred even a facially neutral job requirement if that requirement

disproportionately burdened a protected class, unless the requirement bore a

legitimate relation to "job performance," that is, unless it constituted a "business

necessity." !d. at 431. The Griggs decision created the cause of action now known

as a "disparate impact" claim. Smith v. City of Jackson, 544 U.S. 228, 230, 125 S.

Ct. 1536, 161 L. Ed. 2d 410 (2005).

      This court adopted Griggs' reasoning in Fahn v. Cowlitz County, 93 Wn.2d

368, 375-77, 610 P.2d 857, 621 P.2d 1293 (1980). In Fahn, we held that the HRC

had authority to restrict preemployment inquiries regarding height and weight

because they have a disparate impact on women and applicants of certain national

origins. Id. The Fahn court cited Griggs for the principle that Title VII must be

construed broadly and noted that "our legislature has likewise mandated a liberal

construction for [the WLAD]." Id. at 376. We therefore embraced Griggs' logic

and held that the WLAD empowered the HRC to promulgate rules implementing the

"disparate impact" doctrine. Jd. at 381. Under Washington law, as under federal

law, the employer can defeat the plaintiffs prima facie "disparate impact" claim by

showing that the challenged employment practice serves a "business necessity."

Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354-55, 172 P.3d 688 (2007).




                                           -18-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      Griggs and Fahn weigh heavily in our decision today. Both the "disparate

impact" and "religious accommodation" doctrines bar facially neutral employment

policies that have disproportionate adverse effects on a protected class. For this

reason, courts in several other jurisdictions have concluded that recognizing an

implied disparate impact claim goes hand in hand with recognizing an implied

religious accommodation claim in statutes that prohibit religious discrimination.

Me. Human Rights Comm 'n v. Local 1361, United Paperworker Int 'I Union AFL-

CIO, 383 A.2d 369, 375-78 (Me. 1978); Yott v. N Am. Rockwell Corp., 501 F.2d

398, 402-03 (1974), aff'd, 602 F.2d 904 (9th Cir. 1979); Reid v. Memphis Publ'g

Co., 468 F.2d 346,350 (1972), aff'd in relevant part, 521 F.2d 512, 520-21 (6th Cir.

1975); Montgomery v. Bd. ofEduc., 188 Or. App. 63,68-69, 71 P.3d 94 (2003); see

also Rankins v. Comm 'non Prof'! Competence, 24 Cal. 3d 167, 172-74, 593 P.2d

852, 154 Cal. Rptr. 907 (1979) (noting reasoning in federal courts).

      We agree. Disparate impact and reasonable accommodation claims both

prevent employers from adopting facially neutral policies that create or perpetuate

discriminatory effects. There is no logical reason to recognize in the WLAD an

implied prohibition on facially neutral policies that have disparate impacts but not




                                           -19-
Kumar v. Gate Gourmet, Inc., No. 88062-0



an implied requirement to reasonably accommodate religious practices, thereby

avoiding such disparate impacts. 26

      Washington courts construe the WLAD's protections broadly where other

forms of discrimination are concerned; 27 we decline to carve out an exception for

religious discrimination. Accordingly, we hold that the WLAD creates a cause of

action for failure to reasonably accommodate an employee's religious practices. 28



      26 Instead  of relying on Fahn, 93 Wn.2d 368, the dissent would rely on Hegwine,
162 Wn.2d at 349-52; dissent at 4, but Hegwine is inapposite. Hegwine rejected the
employer's argument that a pregnancy discrimination claim should be viewed as a
disability discrimination claim and analyzed under the "reasonable accommodation"
standard. 162 Wn.2d at 352. Instead, the Hegwine court applied a sex-discrimination
analysis, since "neither pregnancy nor pregnancy related medical conditions are disabilities
under Washington law." !d. This holding was not a general indictment of implied causes
of action. Rather, it was a straightforward application ofthe HRC's interpretive guidelines,
which "plainly provide that claims of employment discrimination because of pregnancy
are to be analyzed as matters of sex [as opposed to disability] discrimination." !d. at 349-
50 ("While the plain language of [the WLAD] prohibits job discrimination 'because of ..
. sex . . .' and does not specifically mention pregnancy, the [ ]HRC has enacted several
interpretive regulations that clarify discrimination because of pregnancy is sex
discrimination." (second and third alterations in original)). Indeed, the question presented
in Hegwine had nothing to do with implied causes of action. No one argued that the
plaintiff had no cause of action in Hegwine-rather, the parties argued over how that cause
of action should be categorized (as sex discrimination or as disability discrimination). !d.
at 348-50. Thus, the dissent errs by asserting that "Hegwine is our most recent and relevant
case addressing whether to imply a failure to accommodate cause of action into the
WLAD." Dissent at 5. Hegwine is simply not on point.

       27 See,   e.g., Martini, 137 Wn.2d at 372-73; Fahn, 93 Wn.2d at 376-82.

       28
          The dissent cites RCW 49.60.040(11), which exempts religious nonprofits from
liability for employment discrimination under the WLAD, as evidence that "the legislature
has given due consideration to the complexities and implications of legislating in the
religious discrimination arena and has chosen not to do so." Dissent at 2. We respectfully

                                             -20-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      2. Have the employees stated a claim for failure to reasonably accommodate
         religious practices?

      The United States Supreme Court has never listed the elements of a prima

facie claim for failure to accommodate religious practices. 29 Several Courts of

Appeals, however, have adopted a test based on the "disparate impact" burden-

shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-03,93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Equal Emp 't Opportunity

Comm 'n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (lOth Cir. 2013);

Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir.

2012); Equal Emp't Opportunity Comm 'n v. Firestone Fibers & Textiles Co., 515

F.3d 307,312 (4th Cir. 2008); Berry v. Dep't of Soc. Serv., 447 F.3d 642,655 (9th

Cir. 2006).

       Under this test, a plaintiff establishes a pnma facie claim of failure to

accommodate religious practices by showing that ( 1) he or she had a bona fide

religious belief, the practice of which conflicted with employment duties; (2) he or



disagree. While the legislature has chosen to exempt religious nonprofits from liability for
discrimination under the WLAD, it has not exempted private non-religious-employers like
the defendant in this case. The dissent therefore errs in citing RCW 49.60.040(11) as proof
that the legislature does not want non-religious-employers to be liable for discrimination.

       29 Its
           most recent relevant case declines to reach that question. Ansonia Bd. ofEduc.
v. Philbrook, 479 U.S. 60, 67, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986) (declining the
petitioner's invitation to "delineat[ e] the plaintiffs prima facie case").

                                              -21-
Kumar v. Gate Gourmet, Inc., No. 88062-0



she informed the employer of the beliefs and the conflict; and (3) the employer

responded by subjecting the employee to threatened or actual discriminatory

treatment. Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Wash.,

296 F.3d 799, 804 (9th Cir. 2002). 30

      To be sure, the employer can defend by showing that it offered the employee

a reasonable accommodation or that an accommodation would be an "undue

hardship" on the employer. Abercrombie, 731 F.3d at 1122-23; Berry, 447 F.3d at

655. Congress did not define the term "undue hardship" when it enacted the 1972

amendment, but the United States Supreme Court has ruled that an "undue hardship"

results whenever an accommodation "require[s an employer] to bear more than a de

minimis cost." Trans World Airlines, 432 U.S. at 84 (decided in posttrial context,

not at pleading stage). The United States Supreme Court has also ruled that a

"reasonable accommodation" need not be the precise accommodation the employee

requests, even if the employer could provide that accommodation without suffering

any undue hardship. Ansonia Bd. ofEduc. v. Philbrook, 479 U.S. 60, 68, 107 S. Ct. 367,


      30
         An employee need not be at immediate risk of actual firing or demotion to
demonstrate threatened or actual discriminatory treatment. See, e.g., Berry, 44 7 F .3d at
655 (employee established an '"adverse employment action"' for purposes of prima facie
religious accommodation claim where employer "'formally instruct[ ed] him not to pray
with or proselytize to clients"'); Equal Emp't Opportunity Comm 'n v. Townley Eng'g &
Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) ("An employee does not cease to be
discriminated against because he temporarily gives up his religious practice and submits to
the employment policy.").

                                           -22-
Kumar v. Gate Gourmet, Inc., No. 88062-0



93 L. Ed. 2d 305 (1986). 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 31 or the interests of clients 32 or other employees 33-would be unduly

burdened by an accommodation.

      But the complaint need only allege the elements of a prima facie case. Under

the test for a prima facie case, described above, the employees here have stated a

claim for failure to reasonably accommodate their religious practices.             Their

complaint alleges that (1) they hold sincere religious beliefs, CP at 17-18, which

conflict with Gate Gourmet's requirement that all employees eat company-provided

food, CP at 16-17; (2) they informed Gate Gourmet ofthe conflict, CP at 19; and (3)




      31 Berry, 447 F.3d at 655 (risk to public employer of violating the establishment
clause is an undue hardship).
       32
        E.g., Knightv. Conn. Dep 't ofPub. Health, 275 F.3d 156, 161 (2d Cir. 2001) (Title
VII did not require employer to permit nurse to proselytize while providing services).
       33E.g.,  Harrell v. Donahue, 638 F.3d 975, 981 & n.7 (8th Cir. 2011)
(accommodation was unreasonable where it would have required other employees to work
weekend shifts that they otherwise would have been exempt from under the seniority
system); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 608 (9th Cir. 2004) (undue
hardships results where accommodation would "allow[] actions that demean or degrade, or
are designed to demean or degrade, members of [employer's] workforce"); Wilson v. U.S.
W. Commc'ns, 58 F.3d 1337, 1339-42 (8th Cir. 1995) (employee not entitled to display
religiously motivated image that upset and offended fellow employees to the point of
disrupting productivity).

                                           -23-
Kumar v. Gate Gourmet, Inc., No. 88062-0



Gate Gourmet responded by first deceiving the employees into eating food

prohibited by their religions, id., and then by refusing to entertain any of the

employees' proposed accommodations, with the result that the employees were

forced to eat prohibited food or work hungry, CP at 19-20. The employees have met

their burden to establish a prima facie religious accommodation claim. Berry, 447

F.3d at 655; Lawson, 296 F.3d at 804. We reverse the trial court's order dismissing

the employees' claim of failure to reasonably accommodate their religious practices.

      3. Have the employees stated a claim for disparate impact?

      As discussed above, this court has held that the WLAD creates a cause of

action for disparate impact. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co.,

106 Wn.2d 901, 909, 726 P.2d 439 (1986). To establish a prima facie case of

disparate impact, the plaintiff must show that ( 1) a facially neutral employment

practice (2) falls more harshly on a protected class. Oliver v. Pac. Nw. Bell Tel. Co.,

106 Wn.2d 675, 679 & n.1, 724 P.2d 1003 (1986) (citing Shannon v. Pay'N Save

Corp., 104 Wn.2d 722, 727, 709 P.2d 799 (1985)).

      The employees' complaint alleges that Gate Gourmet maintains a facially

neutral employee meal policy that falls more harshly on those within a protected

class. The trial court's order dismissing this claim is therefore reversed.

       4. Have the employees stated a claim for battery?



                                           -24-
Kumar v. Gate Gourmet, Inc., No. 88062-0



      A "battery" is an intentional and unpermitted contact with the plaintiffs

person. A defendant is liable for battery if (a) "he [or she] acts intending to cause a

harmful or offensive contact with the [plaintiff or a third party], or an imminent

apprehension of such contact, and (b) a harmful or offensive contact with the

[plaintiff] directly or indirectly results." RESTATEMENT (SECOND) OF TORTS § 13

( 1965). "A bodily contact is offensive if it offends a reasonable sense of personal

dignity." RESTATEMENT (SECOND) OF TORTS§ 19. Thus, an offensive contact does

not have to result in physical injury to constitute a battery. See Seigel v. Long, 169

Ala. 79, 53 So. 753 (1910) (facts established claim for battery where defendant

pushed plaintiffs hat back in order to see his face); Crawford v. Bergen, 91 Iowa

675, 60 N.W. 205 (1894) (facts established claim for battery where defendant placed

his hand on the plaintiffs shoulder and asked him an insulting question).

       Gate Gourmet asserts that the employees have failed to allege an '"intentional

infliction of a harmful bodily contact upon another,"' because they have failed to

allege "contact," "force," and "intent." Respt's Br. at 29-31 (quoting Garratt v.

Dailey, 46 Wn.2d 197, 200,279 P.2d 1091 (1955)).

       We disagree. First, the "contact" element of a battery is simply a harmful or

an offensive contact with the plaintiff; thus, a battery can occur where, for example,

the plaintiff comes in harmful contact with the ground but never touches the



                                           -25-
Kumar v. Gate Gourmet, Inc., No. 88062-0



defendant. See Garratt, 46 W n.2d 197 at 200-01. Second, "force" is not an element

of battery. !d. Finally, the "intent" element of battery is satisfied where a defendant

knows to a "substantial certainty" that his actions will result in the harmful or

offensive touching. !d. at 202. A person therefore commits a battery where he or

she performs '" [a]n act which, directly or indirectly, is the legal cause of a harmful

contact with another's person'" and that act is intentional, is not consented to, and is

otherwise unprivileged. !d. at 200 (quoting RESTATEMENT OF TORTS § 13 (1934)).

These elements are met where the plaintiff's consent to the contact "'is procured by

fraud or duress."' !d. at 201 (quoting RESTATEMENT OF TORTS§ 13(b)).

      The employees allege that Gate Gourmet deceived them into eating food in

violation of their religious beliefs, knowing that this would cause an offensive

contact. These allegations are sufficient to support a claim for battery at this stage.

The trial court's order dismissing this claim is therefore reversed.

       5. Have the employees have stated a claim for negligent infliction of
          emotional distress?

       A plaintiff may recover for negligent infliction of emotional distress if she

proves duty, breach, proximate cause, damage, and "objective symptomatology."

Strong v. Terrell, 147 Wn. App. 376, 387, 195 P.3d 977 (2008) (citing Kloepfel v.

Bokor, 149 Wn.2d 192, 198, 66 P.3d 630 (2003)). This court has recognized that

actions based on mental distress must be subject to limitation by the courts, and it


                                           -26-
Kumar v. Gate Gourmet, Inc., No. 88062-0



has concluded that the proper limitation is a balance of risk against utility. See

Snyder v. Med. Serv. Corp. ofE. Wash., 145 Wn.2d 233, 244, 35 P.3d 1158 (2001).

Accordingly, in the negligent infliction of emotional distress context, we have held

that an employer's conduct is unreasonable when its risk outweighs its utility. Id.

The employees allege that Gate Gourmet knowingly implemented a meal policy that

posed a risk to the employees' religious well-being, and that this risk far outweighed

the policy's utility to the company. It is "possible that facts could be established" to

support the employees' allegations that Gate Gourmet breached a duty to the

employees and that this breach resulted in emotional harm. McCurry, 169 Wn.2d at

101. To maintain an action for negligent infliction of emotional distress, however,

a plaintiff must also establish "emotional distress . . . susceptible to medical

diagnosis and proved through medical evidence." Hegel v. McMahon, 136 Wn.2d

122, 135, 960 P.2d 424 (1998). The employees here have not identified what, if any,

specific objective symptomatology their harm entailed, stating that they will be able

to ascertain "relevant facts" only when discovery begins. CP at 37.

       That is a possibility. This case was dismissed at the pleading stage, and the

employees' claim for negligent infliction of emotional distress was dismissed




                                           -27-
Kumar v. Gate Gourmet, Inc., No. 88062-0



without analysis. In light of this fact and in light of Washington's relatively liberal

standard for stating a cognizable claim, 34 we reverse the dismissal.

                                      CONCLUSION

      The WLAD includes a duty to reasonably accommodate an employee's

religious practices. The trial court thus erred when it dismissed the employees'

reasonable accommodation claim on the ground that the WLAD created no cause of

action for failure to accommodate religious practices. The trial court also erred in

dismissing the employees' claims for disparate impact, battery, and negligent

infliction of emotional distress. We reverse the decision of the Superior Court and

remand for further proceedings consistent with this opinion.




       34
            See McCurry, 169 Wn.2d at 101-03 (rejecting the more stringent federal standard
for stating a claim).

                                             -28-
Kumar v. Gate Gourmet, Inc., No. 88062-0




             WE CONCUR:




                                                  ~J!T-=-·--


__..._,...         '""1,---.,...-··- -




                          0



                                           -29-
Kumar, et al. v. Gate Gourmet, Inc.




                                        No. 88062-0


       MADSEN, C.J. (dissenting)-! believe that the majority erred by implying a cause

of action for religious accommodation into the Washington Law Against Discrimination

(WLAD), chapter 49.60 RCW, in the absence of any legislative or administrative

directive. Notwithstanding this error, the majority then misapplies this newly created

accommodation cause of action to this case. Even assuming a new cause of action,

Kumar fails to allege a requisite adverse employment action and therefore fails to state a

prima facie case. I respectfully dissent.

                                            Discussion

       To begin with, the majority's decision to imply an accommodation cause of action

encroaches on the exclusive law making function of the legislature and in so doing

disrupts the delicate balance between the branches of government mandated by the

Washington Constitution. Neither the legislature nor any administrative agency has

spoken on the issue of religious accommodation, and "[i]t is not the role of the judiciary



                                                1
No. 88062-0
Madsen, C.J. (dissenting)


to second-guess the wisdom" of this inaction. Rousso v. State, 170 Wn.2d 70, 75, 239

P.3d 1084 (2010).

       It is important to remember that a cause of action for discrimination in private

employment is based in statute. The legislature included religion as one of many grounds

on which to establish a discrimination claim under RCW 49.60.180(1) and directed the

Human Rights Commission (HRC) to promulgate rules to implement the purposes of the

WLAD. RCW 49.60.110, .120. At the same time, the legislature chose to entirely

exempt nonprofit religious institutions from prosecution under the WLAD. RCW

49.60.040(1). 1 The existence of this exemption is strong evidence that the legislature has

given due consideration to the complexities and implications of legislating in the

religious discrimination arena and has chosen not to do so, at least for the time being.

This decision may reflect caution to regulate in this complex area, a desire to rely on the

federal cause of action provided by Title VII of the Civil Rights Act of 1964 (Title VII), 2

a need for more time to fully vet the likely impact of creating an accommodation cause of

action, or perhaps deference to the I-IRC through its rule making authority to do this

vetting and to decide whether to engage in rule making. Whatever the reason, the

legislature's decision not to act deserves respect.

        The legislature has given authority to the HRC, not this court, to create specific

rules to effect its general intent. RCW 49.60.110 ("The commission shall formulate


 1
  We recently rejected a facial challenge to the constitutionality of this exemption in Ockletree v.
Franciscan Health System, 179 Wn.2d 769, 317 P.3d 1009 (2014).
2
  Pub. L. 88-352, 78 Stat. 241 (1964); 42 U.S.C. § 2000e-2(a).
                                                 2
No. 88062-0
Madsen, C.J. (dissenting)


policies to effectuate the purposes of this chapter."), .120(3) (stating that the HRC has the

power "[t]o adopt, amend, and rescind suitable rules to carry out the provisions of this

chapter"). The HRC has exercised this authority, most notably when it promulgated rules

requiring accommodation for persons with disabilities.

       Rule making gives the public notice of proposed rules and an opportunity to

comment thereon. Judicial law making of the type engaged in by the majority,

alternately, gives no notice to parties and provides no opportunity for public input to help

vet the consequences. Instead, the majority imposes a new cause of action and applies it

to Gate Gourmet without any prior notice of how it might have conformed its behavior to

the law. The HRC has so far declined to exercise their legislative grant of power and has

neither recognized nor provided rules establishing an accommodation cause of action as it

did in the context of disability discrimination. Agencies are experts in their fields and

have the time, resources, and knowledge to make the most informed decisions.

Additionally, rule making provides an important opportunity to those most affected to

offer critical input. This court should not announce new regulations where the HRC has

chosen not to.

        The majority justifies its decision to bypass the HRC by contending that HRC

regulations merely interpret preexisting WLAD law rather than create new law. Majority

at 13. The majority cites Holland v. Boeing Co., 90 Wn.2d 384, 583 P.2d 621 (1978), for

this proposition, reasoning that in Holland the court found an accommodation action in

the disability context "inherent" in the WLAD itself. Majority at 13. Though this court


                                               3
No. 88062-0
Madsen, C.J. (dissenting)


in Holland did recognize the compatibility of a disability accommodation claim with the

governing policy of WLAD, this court nowhere said such a disability cause of action was

"inherent" and preexisting in the WLAD. Holland, 90 Wn.2d at 388-89. In fact, Holland

gave "great weight" to an existing administrative regulation that had created an

accommodation cause of action for disability discrimination. I d. at 389 ("The regulation,

as the construction of the statute by those whose duty it is to administer its terms, is

entitled to be given great weight."). Moreover, Holland emphasized the unique

difficulties faced by handicapped individuals in the workplace and even explicitly

distinguished between religious and disability discrimination. Id. at 388 (explaining that,

in contrast to other forms of discrimination, "different treatment may eliminate

discrimination against the handicapped and open the door to employment opportunities").

Because Congress had also recognized the exceptional challenges faced by disabled

employees by providing a cause of action separate from Title VII, this court declined to

use the Title VII standard for measuring an unfair employment practice in the

employment context. !d. at 390 ("Congress recognized, as do we, that discrimination on

the basis of handicap is different in many respects from other types of employment

discrimination."). Though collateral to the court's decision to imply a cause of action for

accommodation of disability, the distinction shows the court's recognition of disability

discrimination and religious discrimination as two different bodies of law. The

majority's reliance on Holland is misplaced.




                                               4
No. 88062-0
Madsen, C.J. (dissenting)


       Instead, this court should heed the teaching of Hegwine v. Longview Fibre Co.,

162 Wn.2d 340, 349-52, 172 P.3d 688 (2007), where we declined to imply an

accommodation claim for sex discrimination. In Hegwine a woman challenged an

employer's refusal to hire her because she was pregnant, reasoning that the employer was

liable for sex discrimination under the WLAD. !d. at 345-48. We noted the legislature's

silence and reasoned that "[i]t is not for this court to impose such an accommodation

analysis where the legislature has not seen fit to do so." !d. at 352. The majority

contends that Hegwine is "inapposite" based on a "straightforward application of the

HRC's interpretive guidelines." Majority at 20 n.26. Though the Hegwine court did use

HRC guidelines to determine that pregnancy fell within the realm of sex rather than

disability discrimination, the court went on to hold that the failure to accommodate is not

actionable as sex discrimination and declined to imply a cause of action. Whether or not

the parties focused on this point is irrelevant; this court reached the issue and chose not to

imply an accommodation action. Hegwine is our most recent and relevant case

addressing whether to imply a failure to accommodate cause of action into the WLAD,

and its reasoning is on point here.

        I also disagree with the majority's analogy to disparate impact claims as support

for implying an accommodation cause of action. The majority reasons that because we

have implied a disparate impact cause of action into the WLAD, we can imply a similar

religious accommodation cause of action. Majority at 17-20. Contrary to the majority's

contention, I do find a "logical reason" to recognize disparate impact but not


                                              5
No. 88062-0
Madsen, C.J. (dissenting)


accommodation claims in the WLAD. ld. at 20. Unlike religious accommodation,

disparate impact is not a "cause of action" but is merely an alternate method of proving

discrimination under RCW 49.60.180(1). An employee can prove discrimination by

showing actual discriminatory intent or by showing a disparate impact in the absence of

intent. A typical discrimination claim, whether proven through treatment or impact,

promotes access to employment opportunities for all. Accommodation claims require

that the employer not just refrain from discrimination in hiring, firing, and promotion

decisions but rather reasonably accommodate employees' demands for alterations in

employment conditions when grounded in bona fide religious belief. The majority cites

Fahn v. Cowlitz County, 93 Wn.2d 368, 378, 610 P.2d 857 (1980), to support its

proposition that disparate impact is its own cause of action, yet Fawn itself refers to

disparate impact and disparate treatment as two "forms" of discrimination. Our disparate

impact jurisprudence provides no support for implying an accommodation cause of action

into the WLAD.

        Furthermore, though the majority is correct that federal Title VII jurisprudence is

relevant to the interpretation of the WLAD, the United States Supreme Court's decision

to recognize a religious accommodation cause of action was motivated by a very different

history than its recognition of disparate impact methods of proof. In 1972, Congress

created a cause of action for religious accommodation by amending the definition of

"religion" in Title VII. 42 U.S.C. § 2000eU). The majority credits the employees'

argument that "Title VII had always imposed a reasonable accommodation duty on the


                                              6
No. 88062-0
Madsen, C.J. (dissenting)


employer and that the 1972 amendment clarified (rather than expanded) that implicit duty

... to reasonably accommodate employees' religious practices." Majority at 15. The

majority contends that the WLAD must likewise contain an implicit religious

accommodation cause of action. But the majority overlooks a crucial fact. Shortly after

Congress enacted Title VII, the Equal Employment Opportunity Commission (EEOC)

promulgated a rule establishing a religious accommodation cause of action. The EEOC

promulgated this rule using their legislatively granted rule making authority to apply the

legislative intent of Title VII. So although the Court did recognize an accommodation

cause of action before Congress explicitly amended Title VII in 1972, this long standing

recognition was supported by a rule crafted by an agency that Congress had granted

specific authority to interpret and apply the statute at issue. As addressed above, the

HRC, though cloaked with the same authority as the EEOC, never promulgated a rule

establishing a religious accommodation cause of action. Unlike the United States

Supreme Court, this court has no support, legislative or administrative, for finding an

implicit religious accommodation action in the WLAD.

        Even if I agreed with the majority's decision to imply an accommodation cause of

action, I strongly disagree with its application of such a cause of action to these facts. By

creating a new accommodation cause of action without any legislative or administrative

guidance, this court's only choice is to create a cause of action identical to the federal

Title VII accommodation claim. The majority holds that our new accommodation claim

 will track the federal equivalent but misapplies the prima facie elements. Federal law


                                              7
No. 88062-0
Madsen, C.J. (dissenting)


requires the existence of a cognizable employment harm to sustain a valid

accommodation claim. To state a prima facie case of failure to accommodate under Title

VII, the employee must show ( 1) the employee holds a bona fide religious belief, (2) the

employee informed the employer of that belief, and (3) the employee was disciplined for

failing to comply with the conflicting employer policy. 2 CHARLES A. SULLIVAN ET AL.,

EMPLOYMENT DISCRIMINATION: LAW AND PRACTICE 551 (3d ed. 2002). Indeed, this

court in Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 64-65, 837 P.2d 618 (1992),

required actual discharge of the employee in order to satisfy the third prong of a prima

facie Title VII accommodation claim.

       Kumar fails to allege discharge or discipline. The Gate Gourmet employees may

have held bona fide religious beliefs and did notify their employer of those beliefs, but

they did not suffer any sort of punishment, reprimand, threat of punishment, or discharge

based on these beliefs. The prima facie requirement of an adverse employment action

serves an important purpose in accommodation claims. Private employers are under no

constitutional duty to accommodate the religious beliefs of employees and the

requirement of an adverse employment consequence properly limits the statutory

accommodation remedy to the most serious cases of employer discrimination.

        Though some cases suggest that actual discharge is not always required, even

those cases recognize that there must at the very least be an "implicit threat" of adverse

employment consequences or the existence of constructive discharge. E.g., Berry v.

Dep 't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (stating that the prima facie


                                              8
No. 88062-0
Madsen, C.J. (dissenting)


elements may be met by showing an implicit threat of adverse employment action);

Equal Emp't Opportunity Comm 'n v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir.

1988) (addressing constructive discharge in the context of a religious accommodation

claim). In a footnote, the majority contends that an "employee need not be at immediate

risk of actual firing or demotion to demonstrate threatened or actual discriminatory

treatment." Majority at 22 n.30. Even following the cases the majority cites, the facts

here do not support an adequate prima facie case.

       For example in Berry, 447 F.3d at 655, cited by the majority, the court held that

the third prong of the accommodation cause of action was satisfied because "'the

employer, at least implicitly, threatened some adverse action by formally instructing [the

employee] not to pray or proselytize to clients."' Kumar does not come close to showing

an "implicit threat" because the petitioners were never reprimanded, threatened, or

"instructed." There is no evidence that the Kumar employees would have faced any

adverse employment action.

       The majority also quotes Townley for the proposition that "[a]n employee does not

cease to be discriminated against because he temporarily gives up his religious practice

and submits to the employment policy." 859 F.2d at 614 n.5; Majority at 22 n.30.

Though an accurate quotation, the majority overlooks the fact that Townley was a

constructive discharge case where the employee was so offended by the employer's

requirement to attend weekly religious services that he felt compelled to quit his job.




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No. 88062-0
Madsen, C.J. (dissenting)


Townley, 859 F.2d at 612. The Gate Gourmet employees, in contrast, were not moved to

quit. Townley does not support the majority's position.

       In short, I disagree with the majority's decision to create out of whole cloth a new

cause of action for failure to accommodate without any suggestion that the legislature or

the HRC intended to provide such a claim. Moreover, Title VII requires some form of

actual or threatened adverse employment action to meet the third prong of a prima facie

accommodation claim. The majority is wrong to suggest otherwise. Under any

reasonable definition of a prima facie case, Kumar failed to allege the requisite

employment harm. Thus, even if this court implies an accommodation cause of action

into the WLAD, Kumar cannot state a prima facie case.

       I respectfully dissent.




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No. 88062-0
Madsen, C.J. (dissenting)




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