By Paul Shukovsky

May 23 –Employers have a duty under the Washington Law Against
Discrimination to reasonably accommodate their employees’ religious
practices, the state’s high court
held for the first time in a 5-4 decision May 22 (Kumar v. Gate Gourmet, Wash., No. 88062-0, 5/22/14).

Gate Gourmet Inc. employees working at SeaTac International Airport
brought a proposed class action against the company in June 2012,
alleging that it bars employees from bringing their own lunch for
security reasons but fails to accommodate religious dietary
requirements in the lunches the company provides.

The employees claimed that Gate Gourmet’s practice had a disparate
impact on the basis of creed in violation of the WLAD. The King County
Superior Court dismissed the case for failure to state a claim.

The Washington Supreme Court reversed. While acknowledging the WLAD
lacks an express reasonable accommodation mandate, Justice Sheryl
Gordon McCloud wrote for the majority that “under state rules of
statutory interpretation and persuasive federal antidiscrimination
law, the WLAD implies a requirement to reasonably accommodate
religious practices.”

New Option for Recourse.

The high court disapproved of the analysis in a Washington Court of
Appeals opinion on which the trial court relied. In Short v. Battle
Ground School District
,
279 P.3d 902, 115 FEP Cases 627 (Wash. Ct. App. 2012), the appeals
court held that the WLAD does not require employers to make reasonable
accommodations for religious practices (128 DLR A-7, 7/3/12).

The first of the three factors cited in Short–the WLAD’s
lack of an express reasonable accommodation mandate–is not
persuasive, McCloud wrote. Courts interpreting such silence in
religious antidiscrimination law as endorsing rather than barring this
particular discrimination theory have the more convincing argument,
she said.

Second, the fact that the WLAD’s provisions on creed predate Title
VII of the 1964 Civil Rights Act does not preclude the supreme court’s
reliance on federal law to interpret those provisions, McCloud
said.

Finally, the Washington Human Rights Commission’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, McCloud
said. The HRC’s amicus brief filed in this case asserted that the
commission “has not doubted that the [WLAD] includes a religious
accommodation requirement, and thus did not deem a rule on the subject
necessary,” she said.

The dissenting justices disagreed with the finding by their
colleagues of an implicit duty to accommodate. Chief Justice Barbara
A. Madsen wrote: “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.”

Justices Steven Gonzalez, Charles K. Wiggins, Mary E. Fairhurst,
and Debra L. Stephens joined in the majority opinion. Justices Charles
W. Johnson, James M. Johnson, and Susan J. Owens joined in the
dissent.

Expands Application to Smaller Employers

Because Title VII cases can be applied only to entities with more
than 14 employees and the WLAD can be applied to those with more than
seven employees, the ruling opens recourse in Washington courts
against entities of eight to 14 employees, the plaintiffs’ attorney
Aaron V. Rocke of the Rocke Law Group in Seattle told Bloomberg BNA
May 23.

Rocke said the firm chose not to file the case in federal court to
avoid having to first go to the Equal Employment Opportunity
Commission and because of a perception that state courts would provide
a friendlier venue than federal courts. “Washington historically
has been a vanguard of civil rights. Our law against discrimination
was passed 15 years before Title VII,” he said.

Rocke said the decision could ultimately afford greater protection
than Title VII. “Historically, Washington courts have used the
federal standard as a floor. The Washington courts protect civil
rights at a level equal to or greater than federal law. The decision
looked to federal cases to articulate the duty to accommodate. But the
court didn’t explicitly limit the duty under Washington law to the
same standard as federal law.”

Rocke observed that if not for Judge Mary Yu’s dismissal in 2012,
the case might not have come before the supreme court. Wash. Gov. Gary
Locke (D) appointed Yu to the supreme court May 1, but she did not
participate in the high court’s ruling.

“I don’t fault then-Judge Yu,” said Rocke. “There
is a way of looking at her decision that it actually ripened the issue
for appeal. If she would have only dismissed the reasonable
accommodation claim, the case would have gone forward on the other
three issues and may not have been as strong a case.”

Gate Gourmet’s attorney Pam Salgado of Littler Mendelson in Seattle
declined to comment May 23. Gate Gourmet did not reply to an e-mail
request seeking comment.

By Paul
Shukovsky

To contact the reporter on this story: Paul Shukovsky in Seattle at
pshukovsky@bna.com

To contact the editor responsible for this story: Susan J.
McGolrick at
smcgolrick@bna.com


 

Text of the opinion is available at
http://op.bna.com/dlrcases.nsf/r?Open=pqun-9kdsad.
Copyright 2014, The Bureau of National Affairs, Inc.