In Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), a group of employees (“Kumar”) sued their employer (“Gate Gourmet”) based on an allegedly discriminatory meal policy that forced them to work without food or eat food that violates their religious beliefs. The Court concluded, inter alia, that the “[Washington Law Against Discrimination (WLAD)] … includes a duty to reasonably accommodate an employee’s religious practices.”
SNAPSHOT: This is a case summary of Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information)
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I. SNAPSHOT
case citation
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014)
DESCRIPTION
“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.” Kumar, 180 Wn.2d at 486 (hyperlink added).
“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.” Id.
“According to the plaintiffs, the policy forces them to work without food or eat food that violates their religious beliefs.” Id.
“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.” Id.
“We granted direct review and now reverse.” Id.
CATEGORIES
(1) Washington Law Against Discrimination
(2) Creed
(3) Failure to Accommodate Religious Practices
(4) Disparate Impact
(5) Battery
(6) Negligent Infliction of Emotional Distress
LEGAL TREEs
Δ → WLAD: Failure to Accommodate Religious Practices: Prima Facie Claim
CASE SUMMARY SECTION: The following section contains facts and enumerates material evidence that the Court considered in this case.
II. CASE SUMMARY
FACTS (15 Total):
[1] “The plaintiffs in this action (the employees) work near Seatac airport for the defendant, Gate Gourmet, preparing meals for service on trains and airplanes.” Kumar, 180 Wn.2d at 487.
[2] “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.” Id.
[3] “Instead, Gate Gourmet provides meals for employees to consume during their break.” Id.
[4] “These meals ostensibly consist of one vegetarian and one meat-based main dish.” Id.
[5] “The employees allege, however, that Gate Gourmet uses animal by-products in the ‘vegetarian’ option.” Id. (internal citation omitted).
[6] “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 mixture without notifying the employees, and that it now refuses to alter the employee meals.” Id. (hyperlink added).
[7] “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. (internal citation omitted) (hyperlink added).
[8] “In particular, the complaint alleges that Gate Gourmet’s alleged deception caused ‘putative class members [to] unknowingly eat[ ] food forbidden by their beliefs,’ … 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.'” Id. (internal citations omitted) (alterations in original).
[9] “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.” Id. at 487-88 (internal citation omitted) (alterations in original) (hyperlink added).
[10] “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.” Id. at 488 (internal citation omitted) (hyperlinks added).
[11] “The employees’ complaint also states claims for the common law torts of battery and negligent infliction of emotional distress.” Id. (footnote omitted) (hyperlinks added).
[12] “The trial court granted in full Gate Gourmet’s CR 12(b)(6) motion to dismiss the complaint.” Kumar, 180 Wn.2d at 488 (internal citation omitted) (hyperlink added).
[13] “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.” Kumar, 180 Wn.2d at 488 (internal citation omitted) (hyperlinks added).
[14] “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.” Kumar, 180 Wn.2d at 488 (internal citation omitted) (hyperlinks added).
[15] “The employees sought and obtained direct review by this court.” Id.
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014).
GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.
III. GENERAL RULES
The General Rules Section for this case includes the following topics:
1. Standard of Review;
2. Washington Law Against Discrimination;
3. Failure to Accommodate Religious Practices;
4. Disparate Impact;
5. Battery;
6. Negligent Infliction of Emotional Distress.
1. STANDARD OF REVIEW
(A) DE NOVO
LEGAL CONCLUSIONS: “[L]egal conclusions are reviewed de novo[.]” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 514 n.3, 325 P.3d 193 (Wash. 2014) (citing McKee v. AT& T Corp., 164 Wn.2d 372, 387, 191 P.3d 845 (2008)).
CIVIL RULE (CR) 12(b)(6): “[T]rial court’s ruling to dismiss a claim under CR 12(b)(6) is reviewed de novo[.]” Kumar, 180 Wn.2d at 514 n.3 (citing Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2001)) (internal citation omitted) (hyperlink added).
(B) FAILURE TO STATE A CLAIM: CR 12(b)(6)
STATING A CLAIM UPON WHICH RELIEF CAN BE GRANTED: “‘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.” Kumar, 180 Wn.2d at 488 (citing McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233 P.3d 861 (2010)) (emphasis in original).
WA COURTS ASSUME THE TRUTH OF PLAINTIFFS’ ALLEGATIONS: Washington State appellate courts assume the truth of plaintiffs’ allegations “when reviewing a trial court’s dismissal for failure to state a claim.” See id. at 514 n.1 (citing 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 plaintiff’s allegations”)).
2. WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
(A) WLAD CREATES PRIVATE CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION BASED ON RELIGION
A BRIEF HISTORY OF PROTECTED CLASSES (WLAD): “As originally enacted in 1949, the WLAD prohibited employers from discriminating on the basis of ‘race, creed, color, or national origin.'” Id. at 489 (citing Laws of 1949, ch. 183, § 7) (hyperlinks added). “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.'” Id. (citing RCW 49.60.180(1)) (hyperlinks added).
“CREED” AS A PROTECTED CLASS EQUATES TO RELIGION: “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).” Kumar, 180 Wn.2d at 489 (footnote and internal citations omitted) (hyperlinks added).
WASHINGTON STATE HUMAN RIGHTS COMMISSION: “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.'” Id. (citing RCW 49.60.120(3)) (hyperlink added).
PRIVATE CAUSE OF ACTION AGAINST EMPLOYERS BASED ON UNFAIR PRACTICES: “In 1973, the WLAD was amended to create a private cause of action against any employer engaging in an ‘unfair practice.'” Id. (internal citation omitted) (hyperlink added).
UNFAIR EMPLOYER PRACTICE: DISCRIMINATION IN COMPENSATION OR OTHER TERMS OR CONDITIONS OF EMPLOYMENT: “RCW 49.60.180(3) now provides 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 … .'” Kumar, 180 Wn.2d at 489-90 (alterations in original) (hyperlinks added).
(B) WA “COURTS LOOK TO FEDERAL ANTIDISCRIMINATION LAW TO HELP THEM CONSTRUE THE WLAD’S PROVISIONS”
WA COURTS LOOK TO FEDERAL CASE LAW TO INTERPRET WLAD: “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.” Id. at 491 (footnote and internal citations omitted) (hyperlinks added).
FEDERAL CASES ARE NOT BIDING ON WA STATE SUPREME COURT: “Federal cases 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.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).
(1) WLAD Provides Greater Employee Protections than its Federal Counterparts
“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.” Id. (footnote and internal citations omitted).
i) WLAD Covers Broader Range of Employers
“[T]he WLAD covers a broader range of employers than does Title VII[.]” Id. at 514 n.14 (referencing Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 359, 20 P.3d 921 (2001)) (hyperlink added).
ii) WLAD Mandates Liberal Interpretation and Greater Damages
“[T]he WLAD’s express liberal interpretation mandate and greater damages provisions distinguish it from Title VII[.]” Id. (citing Martini v. Boeing Co., 137 Wn.2d 357, 372-73, 971 P.2d 45 (1999)) (hyperlinks added).
iii) WLAD Covers Independent Contractors
“[T]he 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[.]” Id. (citing Marquis v. City of Spokane, 130 Wn.2d 97, 110-11, 922 P.2d 43 (1996)) (hyperlink added).
iv) WLAD Does Not Cover Punitive Damages
“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[.]” Id. (citing Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 575-76, 919 P.2d 589 (1996).
(C) THE SHORT COURT’S ANALYSIS IS DISAPPROVED
The Short court “held that the WLAD does not require employers to make reasonable accommodations for their employees’ religious practices.” Id. at 493 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 202, 279 P.3d 902 (2012)).
THE SHORT FACTORS: It “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 [(hereinafter, ‘Short Factors’)].” Id. (citing Short, 169 Wn.App. at 202-03).
(1) The Short Factors Are Unpersuasive
i) “[T]he WLAD’s lack of an express reasonable accommodation mandate[ ] is not persuasive.” Id. at 493.
“[C]ourts interpreting such silence in religious antidiscrimination law as endorsing rather than barring this particular antidiscrimination theory have the more persuasive argument.” Id.
ii) “[T]he WLAD’s enactment 15 years before Title VII[ ] is not persuasive[.]” Id.
“[W]e 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].'” Id. (citing Grimwood, 110 Wn.2d at 362) (second-third alterations in original).
“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.” Id. at 494.
iii) “[T]he HRC’s failure to promulgate rules requiring employers to reasonable accommodate employees’ religious practices[ ] is not persuasive[.]” Id.
“[T]he … [HRC‘s] silence does not constitute an interpretation of the WLAD.” Id. (hyperlink added)
“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 implicit requirement in the WLAD’s provisions.” Id. at 495-96 (referencing 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'”)) (internal citation omitted).
(D) “[T]HE WLAD IMPLIES A REQUIREMENT TO REASONABLY ACCOMMODATE RELIGIOUS PRACTICES.” Id. at 500-01 (footnote omitted).
“Washington courts construe the WLAD’s protections broadly where other forms of discrimination are concerned; … 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.” Id. (footnote omitted).
(1) “[R]ecognizing an implied disparate impact claim goes hand in hand with recognizing an implied religious accommodation claim in statutes that prohibit religious discrimination.” Id. at 499 (internal citations omitted).
“Both the ‘disparate impact’ and ‘religious accommodation’ doctrines bar facially neutral employment policies that have disproportionate adverse effects on a protected class.” Id (hyperlink added).
“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.” Id. at 499-500 (internal citations omitted).
“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 an implied requirement to reasonably accommodate religious practices, thereby avoiding such disparate impacts.” Id. at 500 (footnote omitted).
3. FAILURE TO REASONABLY ACCOMMODATE RELIGIOUS PRACTICES
(A) THE PRIMA FACIE CLAIM
“The United States Supreme Court has never listed the elements of a prima facie claim for failure to accommodate religious practices.” Id. at 501 (footnote omitted) (hyperlink added).
“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). Id. (referencing, e.g., Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th 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)) (hyperlink added).
THE PRIMA FACIE CASE: “Under this test, a plaintiff establishes a prima 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 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.
Id. at 501-02 (citing Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)) (footnote omitted) (emphasis and hyperlink added).
THE COMPLAINT: “[T]he complaint need only allege the elements of a prima facie case.” Id. at 503.
(B) NO NEED TO BE AT IMMEDIATE RISK OF ACTUAL FIRING OR DEMOTION
“An employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Id. at 514 n.30 (referencing, e.g., Berry, 447 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.”)) (internal quotation marks omitted).
(C) UNDUE HARDSHIP
“[T]he 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.” Id. at 502 (citing Abercrombie, 731 F.3d at 1122-23; Berry, 447 F.3d at 655).
(1) Definition
“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.'” Id. (internal citation omitted).
(2) Need not be the precise accommodation the employee requests
“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.” Id. (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986)).
(3) Under hardship may be something other than a financial burden
“[O]ther courts have held that an undue hardship may be something other than a financial burden.” Id. “An employer can defeat a religious accommodation claim by showing that valid concerns other than money–e.g., legal obligations … or the interests of clients … or other employees … –would be unduly burdened by an accommodation.” Id. (footnotes omitted) (emphasis added).
“But the complaint need only allege the elements of a prima facie case.” Id. at 503.
(4) Examples: Undue Hardship
LEGAL OBLIGATIONS:
“[R]isk to public employer of violating the establishment clause is an undue hardship[.]” Id. at 514 n.31 (citing Berry, 447 F.3d at 655).
INTERESTS OF CLIENTS:
“Title VII did not require employer to permit nurse to proselytize while providing services[.]” Id. at 514 n.32 (citing, e.g., Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 161 (2d Cir. 2001)).
OTHER EMPLOYEES:
“[A]ccommodation 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[.]” Id. at 514 n.33 (citing, e.g., Harrell v. Donahue, 638 F.3d 975, 981 & n.7 (8th Cir. 2011)).
“[U]ndue hardships results where accommodation would ‘allow[ ] actions that demean or degrade, or are designed to demean or degrade, members of [employer’s] workforce[.]'” Id. (citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 608 (9th Cir. 2004)) (second-third alterations in original).
“[E]mployee not entitled to display religiously motivated image that upset and offended fellow employees to the point of disrupting productivity[.]” Id. (citing Wilson v. U.S.W. Commc’ns, 58 F.3d 1337, 1339-42 (8th Cir. 1995)).
4. DISPARATE IMPACT
WLAD CREATES CAUSE OF ACTION FOR DISPARATE IMPACT: “[T]his court has held that the WLAD creates a cause of action for disparate impact.” Id. at 503 (citing E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (1986)).
(A) THE PRIMA FACIE CASE
“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.
Id. (citing Oliver v. P. Nw. Bell Tel. Co., 106 Wn.2d 675, 679, & n.1, 724 P.2d 1003 (1986)) (internal citation omitted) (paragraph formatting and hyperlinks added).
5. BATTERY
(A) THE BASICS
BATTERY DEFINITION: “A ‘battery’ is an intentional and unpermitted contact with the plaintiff’s person.” Id. at 504.
BASIS FOR LIBILITY: “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.
Id. (citing Restatement (Second) of Torts § 13 (1965)) (second-fourth alterations in original) (internal quotation marks omitted).
Thus, “[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.” Id. (second alteration in original) (internal citations an quotation marks omitted).
(B) OFFENSIVE BODILY CONTACT
OFFENSIVE BODILY CONTACT: NOT REQUIRED TO RESULT IN PHYSICAL INJURY: “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Id. (citing Restatement (Second) of Torts § 19). “Thus, an offensive contact does not have to result in physical injury to constitute a battery.” Id. (referencing Seigel v. Long, 169 Ala. 79, 53 So. 753 (1910) (“facts established claim for battery where defendant pushed plaintiff’s 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 plaintiff’s shoulder and asked him an insulting question”)).
NATURE OF THE CONTACT: “[T]he ‘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 defendant.” Id. (internal citation omitted).
(C) INTENT
THE INTENT ELEMENT: “[T]he ‘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.” Id. at 504-05 (internal citation omitted).
(D) FORCE
FORCE IS NOT AN ELEMENT: “‘[F]orce’ is not an element of battery.” Id. at 504 (internal citation omitted).
(E) FRAUD/DURESS
PROCURING CONSENT TO CONTACT VIA FRAUD/DURESS: “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.” Id. at 505 (alteration in original) (internal citations an quotation marks omitted). “These elements are met where the plaintiff’s consent to the contact is procured by fraud or duress.” Id. (internal citations omitted).
6. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(A) THE ELEMENTS
“A plaintiff may recover for negligent infliction of emotional distress if she proves[:]
[(1)] duty,
[(2)] breach,
[(3)] proximate cause,
[(4)] damage, and
[(5)] ‘objective symptomatology.’
Id. at 505 (internal citations omitted) (paragraph formatting added).
(B) OBJECTIVE SYMPTOMATOLOGY
OBJECTIVE SYMPTOMATOLOGY: “To maintain an action for negligent infliction of emotional distress … a plaintiff must … establish ’emotional distress … susceptible to medical diagnosis and proved through medical evidence.'” Id. at 506 (citing Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998)).
(C) LIMITATION
LIMITATION: BALANCE OF RISK AGAINST UTILITY: “This court has recognized that actions based on mental distress must be subject to limitation by the courts, and it has concluded that the proper limitation is a balance of risk against utility.” Id. at 505 (referencing Snyder v. Med. Serv. Corp. of E. 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.
(D) BATTERY: WA STANDARD MORE LIBERAL THAN FEDERAL STANDARD
“Washington[ ] [has a] relatively liberal standard for stating a cognizable claim[.]” Id. at 506, 514 n.34 (referencing McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101-03, 233 P.3d 861 (2010) (“rejecting the more stringent federal standard for stating a claim”)).
ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.
IV. ISSUES
ISSUE #1: “Does the WLAD require covered employers to make reasonable accommodations for their employees’ religious practices?”
(A) YES: “THE WLAD INCLUDES A DUTY TO REASONABLY ACCOMMODATE AN EMPLOYEE’S RELIGIOUS PRACTICES.” Id. at 506.
RULE: See § III(2)(A) (General Rules: Washington Law Against Discrimination: WLAD Creates Private Cause of Action for Employment Discrimination Based on Religion), supra.
(1) “The WLAD creates a private cause of action for employment discrimination on the basis of religion[.]” Kumar, 180 Wn.2d at 489.
“CREED” IN WLAD EQUATES TO “RELIGION” IN TITLE VII: “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).” Kumar, 180 Wn.2d at 489 (footnote omitted). “The parties agree that the term ‘creed’ in the WLAD refers to religious belief.” Id.
WLAD ESTABLISHES UNFAIR PRACTICE BASED ON CREED: “RCW 49.60.180(3) now provides 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 … .'” Kumar, 180 Wn.2d at 489-90 (alterations in original) (hyperlink added). “The employees brought their class action suit under this provision.” Id. at 490.
(2) “Washington courts look to federal antidiscrimination law to help them construe the WLAD’s provisions[.]” Id.
(3) “We disapprove the Short court’s analysis[.]” Id. at 493.
See § III(2)(C) (General Rules: Washington Law Against Discrimination: The Short Court’s Analysis Is Disapproved), supra.
(4) “Under state rules of statutory interpretation and persuasive federal antidiscrimination case law, the WLAD implies a requirement to reasonably accommodate religious practices[.]” Kumar, 180 Wn.2d at 496.
WA SUPREME COURT AGREES WITH SEVERAL OTHER JURISDICTIONS: “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.” Kumar, 180 Wn.2d at 499-500 (internal citations omitted). “We agree.” Id. at 500 (emphasis added).
» COURT’S ANALYSIS: “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 an implied requirement to reasonably accommodate religious practices, thereby avoiding such disparate impacts.” Id. (footnote omitted).
(B) REVERSED AND REMANDED
“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.” Id. at 506. “We reverse the decision of the Superior Court and remand for further proceedings consistent with this opinion.” Id. at 506.
ISSUE #2: “Have the employees stated a claim for failure to reasonably accommodate religious practices?”
(A) YES: “THE EMPLOYEES HAVE MET THEIR BURDEN TO ESTABLISH A PRIMA FACIE RELIGIOUS ACCOMMODATION CLAIM.” Id. at 503.
RULE: See § III(3) (General Rules: Failure to Accommodate Religious Practices), supra. “Under the test for a prima facie case, … the employees here have stated a claim for failure to reasonably accommodate their religious practices.” Kumar, 180 Wn.2d at 503.
(1) The employees established a prima facie case
“Their complaint alleges that[:]
(1) they hold sincere religious beliefs … that conflict with Gate Gourmet’s requirement that all employees eat company-provided food, … ;
(2) they informed Gate Gourmet of the conflict, … ; and
(3) Gate Gourmet responded by first deceiving the employees into eating food prohibited by their religions … 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 ….
Id. at 503 (internal citation omitted). “The employees have met their burden to establish a prima facie religious accommodation claim.” Id.
(B) REVERSED & REMANDED
“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.” Id. at 506. “We reverse the decision of the Superior Court and remand for further proceedings consistent with this opinion.” Id.
ISSUE #3: “Have the employees stated a claim for disparate impact?”
(A) YES: THE EMPLOYEES STATED A CLAIM FOR DISPARATE IMPACT
RULE: See § III(4) (General Rules: Disparate Impact), supra.
(1) The complaint alleges Gate Gourmet maintains facially neutral policy falling more harshly on those within a protected class
» COURT’S ANALYSIS: “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.” Kumar, 180 Wn.2d at 504.
(B) REVERSED AND REMANDED
“The trial court … erred in dismissing the employees’ claim[ ] for disparate impact …. We reverse the decision of the Superior Court and remand for further proceedings consistent with this opinion.” Id. at 506.
ISSUE #4: “Have the employees stated a claim for battery?”
(A) YES: THE EMPLOYEES STATED A CLAIM FOR BATTERY
RULE: See § III(5) (General Rules: Battery), supra.
(1) The Employees allegations were sufficient to support claim for battery
GATE GOURMET ARGUMENT: “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.” Kumar, 180 Wn.2d at 504 (internal citations and quotation marks omitted).
» COURT’S ANALYSIS: In this case, the Court applied the principles in § III(5) (General Rules: Battery), supra. Accordingly, it disagreed with Gate Gourmet’s argument.
EMPLOYEES’ ARGUMENT: “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.” Kumar, 180 Wn.2d at 505.
» COURT’S ANALYSIS: The employees’ “allegations are sufficient to support a claim for battery at this stage. The trial court’s order dismissing this claim is therefore reversed.” Id.
(B) REVERSED & REMANDED
“The trial court … erred in dismissing the employees’ claim[ ] for … battery …. We reverse the decision of the Superior Court and remand for further proceedings consistent with this opinion.” Id. at 506.
ISSUE #5: “Have the employees stated a claim for negligent infliction of emotional distress?”
(A) MAYBE: “THIS CASE WAS DISMISSED AT THE PLEADING STAGE, AND THE EMPLOYEES’ CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS WAS DISMISSED WITHOUT ANALYSIS.” Id.
RULE: See § III(6) (General Rules: Negligent Infliction of Emotional Distress), supra.
(1) “In light of … [the pleading-stage dismissal without analysis] and in light of Washington’s relatively liberal standard for stating a cognizable claim, … we reverse the dismissal.” Kumar, 180 Wn.2d at 506 (footnote omitted).
EMPLOYEES’ ARGUMENT: “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.” Id.
» COURT’S ANALYSIS: “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.” Id. at 505-06 (internal citation and quotation marks omitted).
“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.'” Id. at 506 (internal citation omitted) (alteration in original). “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.” Id. at 506 (internal citation omitted). “That is a possibility.” Id.
(B) REVERSED & REMANDED
“The trial court … erred in dismissing the employees’ claim[ ] for … negligent infliction of emotional distress. We reverse the decision of the Superior Court and remand for further proceedings consistent with this opinion.” Id.
DISSENT (Madsen, C.J.)
(A) “THE MAJORITY ERRED BY IMPLYING A CAUSE OF ACTION FOR RELIGIOUS DISCRIMINATION INTO THE … [ ]WLAD[ ] … IN THE ABSENCE OF ANY LEGISLATIVE OR ADMINISTRATIVE DIRECTIVE.” Id. at 506-07.
(1) “[T]he Majority’s decision … encroaches on the exclusive law making function of the legislature[.]” Id. at 507.
COURT SHOULD NOT ANNOUNCE NEW REGULATIONS WHERE HRC HAS CHOSED NOT TO: “The legislature has given authority to the HRC, not this court, to create specific rules to effect its general intent.” Id. at 508 (citing RCW 49.60.110 (” The commission shall formulate 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”)).
“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 to second-guess the wisdom’ of this inaction.” Id. at 507 (citing Rousso v. State, 170 Wn.2d 70, 75, 239 P.3d 1084 (2010)).”This court should not announce new regulations where the HRC has chosen not to.” Id. at 508.
(2) “The Majority’s reliance on Holland is misplaced.” Id. at 509.
“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.” Kumar, 180 Wn.2d at 510.
(3) “Contrary to the Majority’s contention, … [there is] a ‘logical reason’ to recognize disparate impact but not accommodation claims in the WLAD.” Id. at 510 (internal citation omitted)
DISPARATE IMPACT IS NOT A CAUSE OF ACTION: “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.” Kumar, 180 Wn.2d at 510. “Our disparate impact jurisprudence provides no support for implying an accommodation cause of action into the WLAD.” Id. at 511.
(4) “Unlike the United States Supreme Court, this court has no support, legislative or administrative, for finding an implicit religious accommodation action in the WLAD.” Id. at 512.
ADMINISTRATIVE SUPPORT FOR U.S. SUPREME COURT: “[A]lthough the [U.S. Supreme] 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 [(i.e., E.E.O.C.)] that Congress had granted specific authority to interpret and apply the statute at issue.” Kumar, 180 Wn.2d at 511-12.
DISSENT ARGUMENT: However, in the instant case, “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.” Id. at 512.
(B) “[T]HE MAJORITY THEN MISAPPLIES THIS NEWLY CREATED ACCOMMODATION CAUSE OF ACTION TO THIS CASE.” Id. at 507.
DISSENT ARGUMENT: MAJORITY MISAPPLIES THE PRIMA FACIE ELEMENTS: “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.” Id. at 512.
(1) The Prima Facie Case
THE DISSENT’S RULE: “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.
Id. (citing 2 Charles A. Sullivan et al., Employment Discrimination: Law and Practice 551 (3d ed. 2002)).
(2) The Third Prong: Actual Damage Required: Kumar Fails the Test
COGNIZABLE EMPLOYMENT HARM REQUIRED TO SUSTAIN VALID ACCOMMODATION CLAIM: “Federal law requires the existence of a cognizable employment harm to sustain a valid accommodation claim.” Id. “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, 180 Wn.2d at 512.
DISSENT ARGUMENT: “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.” Id.
(C) “I RESPECTFULLY DISSENT.” Id. at 514.
“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.” Id.
“Moreover, Title VII requires some form of actual or threatened adverse employment action to meet the third prong of a prima facie accommodation claim[ ][;] [t]he majority is wrong to suggest otherwise. Under any reasonable definition of a prima facie case, Kumar failed to allege the requisite employment harm.” Id.
“Thus, even if this court implies an accommodation cause of action into the WLAD, Kumar cannot state a prima facie case.” Id.
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