CACI 2561 Religious Creed Discrimination—Reasonable Accommodation—Affirmative Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))

California Civil Jury Instructions CACI

2561 Religious Creed Discrimination—Reasonable Accommodation—Affirmative Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))

[Name of defendant] claims that accommodating [name of plaintiff]’s [religious belief/religious observance] would create an undue hardship to the operation of [his/her/nonbinary pronoun/its] business.

To succeed on this defense, [name of defendant] must prove that [he/she/nonbinary pronoun/it] considered reasonable alternative options for accommodating the [religious belief/religious observance], including (1) excusing [name of plaintiff] from duties that conflict with [his/her/nonbinary pronoun] [religious belief/religious observance][,] [or] (2) permitting those duties to be performed at another time or by another person[, or (3) [specify other reasonable accommodation]].

If you decide that [name of defendant] considered but did not adopt [a] reasonable accommodation[s], you must then decide if the accommodation[s] would have created an undue hardship because it would be significantly difficult or expensive, in light of the following factors:

a.The nature and cost of the accommodation[s];

b.[Name of defendant]’s ability to pay for the accommodation[s];

c.The type of operations conducted at the facility;

d.The impact on the operations of the facility;

e.The number of [name of defendant]’s employees and the relationship of the employees’ duties to one another;

f.The number, type, and location of [name of defendant]’s facilities; and

g.The administrative and financial relationship of the facilities to one another.

New September 2003; Revoked December 2012; Restored and Revised June 2013; Revised November 2019, May 2020, May 2021

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Directions for Use

For religious beliefs and observances, the statute requires the employer (or other covered entity) to demonstrate that the employer explored certain means of accommodating the plaintiff, including two specific possibilities: (1) excusing the plaintiff from duties that conflict with the plaintiff’s religious belief or observance or (2) permitting those duties to be performed at another time or by another person. (Gov. Code, § 12940(l)(1).) If there is evidence of another reasonable alternative accommodation, include it as a third means of accommodating the plaintiff.

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 (11th ed. 2017) Constitutional Law, §§ 1025, 1026
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, 7:631, 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