A recent decision from the United States Court of Appeals for the Ninth Circuit—Cherry et al. v Washington Dep’t of Fish & Wildlife, et al., is a primer in employer obligations when reasonably accommodating employees’ religious beliefs.
In August 2021, the Governor of Washington mandated that nearly all State employees vaccinate against COVID-19 or face termination. Five Washington Fish & Wildlife Department employees sought exemption on religious grounds. Although the Department agreed their requests stemmed from their sincerely held religious beliefs, it nonetheless maintained that vaccination was required if they wished to remain in their current roles, which required work “in the physical presence of others.” All five employees offered to mask-and-distance, and some suggested telework. All employees also expressed interest in transferring to another job that would eliminate their religious conflict.
The Department replied that “reassignment remains a possibility, although opportunity may be limited,” then directed the employees to speak to a Reasonable Accommodation Specialist. However, when one of the employees approached the Reasonable Accommodation Specialist, she claimed “[t]here’s just nothing available.” None of the five employees completed the reassignment application process, which they described as “a show.” Their impressions were not off base; out of 122 requests for religious accommodation reassignments, the Department only granted 17, and the data suggested that reassignment, when it was available, often was not to a comparable position. All five employees were ultimately fired.
Because the employees did not complete the reassignment process, the district court dismissed their religious discrimination claims, but the Ninth Circuit reversed. The appellate court concluded that merely offering the reassignment process was not, by itself, an offer of reasonable accommodation. Instead, presenting an alternative position or arrangement that would have eliminated the asserted conflict between the employee’s religious beliefs and their current job was the required first step in the accommodation process. From there, the parties could have discussed the reasonableness of the offered accommodation or other alternatives, but since the Department’s offer “was nothing more than an opportunity for reassignment, couched in language that made success appear unlikely,” the court was unable to conclude as a matter of law that the Department had made a good faith effort to reasonably accommodate the employees’ religious beliefs.
The decision highlights a common employer mistake, which is conflating the interactive process required by the Americans with Disabilities Act with the religious accommodation requirement under Title VII. The Department argued that it had opened an opportunity for an interactive dialogue when it informed the employees about the process for applying for reassignment. The Ninth Circuit dismissed this argument, emphasizing that the employer’s duty in a religious accommodation setting requires first proposing a specific accommodation, which in this case would have required offering “concrete options for transfer.” It was not enough just to propose the possibility of transfer. The distinction is subtle, but enough in this case to warrant remand for trial.
Employers should not assume from the decision that all vaccine mandates were impermissible, or that reassignment is always required when an employee requests religious accommodation. Instead, what employers should take from the decision is that their duty to reasonably accommodate employees’ religious beliefs imposes a duty to present a concrete accommodation proposal, and then to work in good faith to determine whether the accommodation eliminates the employee’s religious conflict without imposing an undue burden on the business. Perfunctory gestures will not suffice.
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