CACI 2560 Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements (Gov. Code, § 12940(l))

California Civil Jury Instructions CACI

2560 Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements (Gov. Code, § 12940(l))

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] by failing to reasonably accommodate [his/her/nonbinary pronoun] religious [belief/observance]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] was [an employer/[other covered entity]];

2.That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[other covered relationship to defendant]];

3.That [name of plaintiff] has a sincerely held religious belief that [describe religious belief, observance, or practice];

4.That [name of plaintiff]’s religious [belief/observance] conflicted with a job requirement;

5.That [name of defendant] knew of the conflict between [name of plaintiff]’s religious [belief/observance] and the job requirement;

6.[That [name of defendant] did not explore available reasonable alternatives of accommodating [name of plaintiff], including excusing [name of plaintiff] from duties that conflict with [name of plaintiff]’s religious [belief/observance] or permitting those duties to be performed at another time or by another person, or otherwise reasonably accommodate [name of plaintiff]’s religious [belief/observance];]


[That [name of defendant] [terminated/refused to hire] [name of plaintiff] in order to avoid having to accommodate [name of plaintiff]’s religious [belief/observance];]

7.That [name of plaintiff]’s failure to comply with the conflicting job requirement was a substantial motivating reason for

[[name of defendant]’s decision to [discharge/refuse to hire/[specify other adverse employment action]] [name of plaintiff];]


[[name of defendant]’s subjecting [him/her/nonbinary pronoun] to an adverse employment action;]


[[his/her/nonbinary pronoun] constructive discharge;]

8.That [name of plaintiff] was harmed; and

9.That [name of defendant]’s failure to reasonably accommodate [name of plaintiff]’s religious [belief/observance] was a substantial factor in causing [his/her/nonbinary pronoun] harm.

A reasonable accommodation is one that eliminates the conflict between the religious practice and the job requirement.

If more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith.

New September 2003; Revised June 2012, December 2012, June 2013, November 2019, May 2020

Crowdsource Lawyers

Directions for Use

If element 1 is given, the court may need to instruct the jury on the statutory definition of “employer” under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)–(d).)

Regulations provide that refusing to hire an applicant or terminating an employee in order to avoid the need to accommodate a religious practice constitutes religious creed discrimination. (Cal. Code Regs., tit. 2, § 11062.) Give the second option for element 6 if the plaintiff claims that the employer terminated or refused to hire the plaintiff to avoid a need for accommodation.

Element 7 requires that the plaintiff’s failure to comply with the conflicting job requirement be a substantial motivating reason for the employer’s adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.) Read the first option if there is no dispute as to whether the employer’s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether there was an adverse employment action is a question of fact for the jury. If constructive discharge is alleged, give the third option for element 7 and also give CACI No. 2510, “Constructive Discharge” Explained.

Federal courts construing Title VII of the Civil Rights Act of 1964 have held that the threat of an adverse employment action is a violation if the employee acquiesces to the threat and foregoes religious observance. (See, e.g., EEOC v. Townley Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no case has been found that construes the FEHA similarly, element 7 may be modified if the court agrees that this rule applies. In the first option, replace “decision to” with “threat to.” Or in the second option, “subjecting [name of plaintiff] to” may be replaced with “threatening [name of plaintiff] with.”

Sources and Authority

Religious Accommodation Required Under Fair Employment and Housing Act. Government Code section 12940(l).

Scope of Religious Protection. Government Code section 12926(p).

Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).

Reasonable Accommodation and Undue Hardship. Cal. Code Regs., tit. 2, § 11062.

“In evaluating an argument the employer failed to accommodate an employee’s religious beliefs, the employee must establish a prima facie case that he or she had a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement … . Once the employee establishes a prima facie case, then the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 [58 Cal.Rptr.2d 747], internal citation omitted.)

“Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. The reasonableness of the employer’s efforts to accommodate is determined on a case by case basis … . ‘[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee’s proposed accommodations would result in undue hardship.’ ‘[W]here the employer has already reasonably accommodated the employee’s religious needs, the … inquiry [ends].’ ” (Soldinger, supra, 51 Cal.App.4th at p. 370, internal citations omitted.)

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, … proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harrissupra, 56 Cal.4th at p. 232, original italics.)

“We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harrissupra, 56 Cal.4th at p. 229.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 967, 1028, 1052, 1054
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610–7:611, 7:631–7:634, 7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Religion, pp. 219–224, 226–227; id. (2000 supp.) at pp. 100–101