Attorneys for Plaintiff - Stanford Law School...2015/06/02 · California provides broad protection...

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

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Attorneys for Plaintiff

Nathaniel A. Hsieh, Student Registration No. 0462701 Paige E. Muhlestein, Student Registration No. 0463217 (admission pending) William J. W. Crum, Student Registration No. 0463136 (admission pending) James A. Sonne, State Bar No. 250759 Zeba A. Huq, State Bar No. 261440 Stanford Law School Religious Liberty Clinic Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305 Phone: (650) 723-1422 Fax: (650) 723-4426 Email: [email protected]

Alan J. Reinach, State Bar No. 196899 Jonathon S. Cherne, State Bar No. 281548 Church State Council 2686 Townsgate Road Westlake Village, CA 91359 Phone: (805) 413-7398 Fax: (805) 497-7099 Email: [email protected]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

TERESA BROWN,

Plaintiff,

vs.

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 34-2015-00176321

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION (LIABILITY)

Date: April 28, 2017 Time: 2:00 p.m. Department: 53 Judge: Hon. David I. Brown

[Reservation No. 2224572]

Complaint Filed: March 11, 2015 Trial Date: May 23, 2017


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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

STATEMENT OF UNDISPUTED FACTS ....................................................................................2

A. As a practicing Seventh-day Adventist, Teresa Brown objects to working sundown Fridayto sundown Saturday for religious reasons ...............................................................................2

B. Ms. Brown applies to be a correctional officer at CDCR, making clear in a lengthy hiringprocess that she would work any place and at any time except her Sabbath ...........................3

C. CDCR rejects Ms. Brown for her inability to work on her Sabbath but considers noparticular job assignment, schedule, or location ......................................................................4

D. CDCR is a large and nimble employer, with scores of facilities and thousands ofcorrectional officers who are assigned schedules at its sole discretion ....................................5

1. CDCR has a multi-billion-dollar budget and an officer staff of thousands ........................5

2. CDCR retains exclusive authority to assign its officers to particular facilities andschedules in their first two years of service, and significant discretion thereafter .............6

3. CDCR also regularly allows shift swaps or pays overtime to cover absences, andretains broad discretion over staffing in emergency situations ..........................................7

ARGUMENT ...................................................................................................................................8

I. SUMMARY JUDGMENT STANDARD ...........................................................................8

II. CALIFORNIA LAW IS STRICT: AN EMPLOYER CANNOT REJECT A JOBAPPLICANT FOR OBJECTING TO SABBATH WORK UNLESS IT CAN SHOWIT EXPLORED ALL OPTIONS BUT COULD NOT HIRE THE APPLICANTABSENT SIGNIFICANT DIFFICULTY OR EXPENSE ..................................................8

III. CDCR LOSES BECAUSE IT CANNOT SHOW IT TRIED TO ACCOMMODATEMS. BROWN, OR THAT DOING SO WAS TOO DIFFICULT OR COSTLY ..............11

A. Ms. Brown has a prima facie case because CDCR understood her Sabbathconflict .........................................................................................................................11

B. CDCR cannot sustain its heavy burden under California law because it failed toexplore reasonable available accommodation options .................................................12

C. CDCR also cannot prevail because it fails to demonstrate all options foraccommodating Ms. Brown would have been too difficult or costly ..........................13


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1. CDCR could have appointed Ms. Brown to one of many thousands ofmanagement-determined posts, which it can assign at its discretionregardless of seniority ......................................................................................13

2. CDCR could have assigned Ms. Brown to a non-management post subjectto seniority but temporarily allowed shift swaps or provided substitutes inthe event of a conflict .......................................................................................14

3. CDCR could have assigned Ms. Brown to a non-management post, allowinga limited seniority bid exception until she could avoid Sabbath work on thatbasis..................................................................................................................16

4. CDCR cannot justify Ms. Brown’s rejection based on the need for emergencyor involuntary substitution, as those instances are rare or can be handled ......17

5. In any event, CDCR made its decision based on speculative hardship ...........18

IV. BECAUSE IT REFUSED TO HIRE MS. BROWN DUE TO A RESOLVABLECONFLICT BETWEEN HER RELIGIOUS PRACTICE AND ITS JOB RULES,CDCR COMMITTED ILLEGAL RELIGIOUS DISCRIMINATION .............................19

CONCLUSION ..............................................................................................................................20


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TABLE OF AUTHORITIES

CASES

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 .................................................................8

Anderson v. General Dynamics Convair Aerospace Division (9th Cir. 1978)

589 F.2d 397 .......................................................................................................................10,18

Balint v. Carson City (9th Cir. 1999) 180 F.3d 1047 ............................................................9,12,16

Burns v. Southern Pac. Transp. Co. (9th Cir. 1978) 589 F.2d 403 ..........................................10,13

Cal. Fair Empl. & Hous. Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004 .......8,11

Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233 ................................................1,9,12

EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028 ...........................................1,19

EEOC v. Abercrombie & Fitch Stores, Inc. (N.D. Cal. 2013) 966 F.Supp.2d 949 ..................10,18

Nelson v. Thornburgh (E.D. Pa. 1983) 567 F. Supp. 369 .........................................................11,15

Opuku-Boateng v. State of California (9th Cir. 1996) 95 F.3d 1461 ..................................... passim

Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345 ..............................................9,12

U.S. Airways, Inc. v. Barnett (2002) 535 U.S. 391 ....................................................................9,16,

STATUTES

Cal. Code Civ. Proc., § 437, subdivision (c) ....................................................................................8

Cal. Gov. Code, § 12926, subdivision (f) .......................................................................................8

Cal. Gov. Code, § 12926, subdivision (q) .....................................................................................19

Cal. Gov. Code, § 12926, subdivision (u) ............................................................................. passim

Cal. Gov. Code, § 12940, subdivision (a)(1) ...................................................................................8

Cal. Gov. Code, § 12940, subdivision (l)(1) .......................................................................... passim

Cal. Gov. Code, § 12940, subdivision (m) ....................................................................................10

N.J. Stat. Ann. § 10:5-12(q) (West 2014) ......................................................................................10

N.Y. Exec. L. § 296(10)(d) (2016) ................................................................................................10

Or. Rev. Stat. § 659A.033(4) (2011) .............................................................................................10

OTHER

Cal. Code Regs. tit. 2, § 11068, subdivision (d)(5) ....................................................................9,16


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Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) .....................19

Cooper, Overcoming Barriers to Employment: The Meaning of Reasonable Accommodation and

Undue Hardship in the Americans with Disabilities Act, (1991) 139 U.Pa. L.Rev. 1423 .....11

Judicial Council of California Civil Jury Instruction 2560 ..............................................................9

Ops. Cal. Legis. Counsel, No. 0005360 (Aug. 28, 2012) Discrimination in Employment:

Reasonable Accommodations Law (Assem. Bill No. 1964) (2010−2012 Reg. Sess.) ..........10


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INTRODUCTION

This case concerns whether our state prison system can categorically refuse to hire as

correctional officers practicing Seventh-day Adventists and, in turn, members of other minority

faiths who abstain from work at certain times of the week for religious reasons, despite our

legislature’s command that employers must do whatever they can to welcome them.

California provides broad protection to Sabbath-observing job seekers. Specifically, it

forbids employers from rejecting applicants because of a “conflict” with their faith-based need to

regularly abstain from work on a “Sabbath” day, unless the employer can show it tried but could

not in fact accommodate the religious practice absent “significant difficulty or expense”—the

same employer-hardship test for disability and, notably, the strictest in the nation. (Gov. Code,

§§ 12926(u), 12940(l)(1).) Indeed, our state also condemns as illegal disparate treatment the

refusal to hire based on the need for religious accommodation; unlike other protected classes,

employers cannot hide behind supposedly neutral job requirements. As the U.S. Supreme Court

recently insisted in the analogous federal-law context, religion enjoys “favored treatment” in the

workplace. (E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028, 2034.)1

But when Plaintiff Teresa Brown, a devout Adventist, sought to be a correctional officer

for the California Department of Corrections and Rehabilitation, CDCR refused because she

could not work sundown Friday to sundown Saturday—a time Adventists reserve for God. And

not only did CDCR fail to explore available options, it cannot now show an accommodation was

too difficult or costly. With a ten-figure budget, thousands of posts, and scores of facilities, and

the schedule flexibility it has in other contexts, CDCR cannot produce any facts sufficient to

create a triable issue on its affirmative defense of hardship. Indeed, it doesn’t stand a chance.

CDCR blames its failure to accommodate Ms. Brown on its seniority system. But not

only is that system inapplicable to new hires, it includes a swath of exceptions. CDCR refused to

1 To the extent there is overlap, our courts rely on federal civil-rights law, specifically Title VII of the Civil Rights Act of 1964, to interpret analogous provisions of state law, specifically the Fair Employment and Housing Act (FEHA). (Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233, 241.)


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consider any of this, much less any particular jobs in any of its prisons. CDCR also insists that,

because of the nature of their job, officers must be available to work 24 hours a day, seven days a

week, regardless of any statutory duty of religious accommodation. But the law provides no such

blanket exemption; it covers prisons just as much as any other employer. Moreover, CDCR’s

security concerns—regardless of their merit in the abstract—were either speculative or factually

unfounded and thus cannot justify rejecting Brown without exploring available alternatives. As

described more fully below, CDCR cannot demonstrate that it lacked sufficient discretion in its

scheduling practices to fulfill its obligations to both public safety and Brown’s civil rights.

In rejecting Ms. Brown because of her inability to violate her Sabbath, CDCR sent a “do

not apply” message to anyone whose conscience demands they abstain from work for religious

reasons—as a full day of rest, for weekly congregational worship, or otherwise. In this case it’s

an Adventist, but CDCR’s approach could just as well apply to those of the Jewish, Muslim, or

Mormon faith, to name a few. Given that CDCR is one of the largest employers in California,

this would be disturbing in any event. But given our legislature’s insistence on broad protection

for religious observance, that the state itself takes this position is all the more troubling.

Teresa Brown is entitled to summary judgment.

STATEMENT OF UNDISPUTED FACTS

A. As a practicing Seventh-day Adventist, Teresa Brown objects to working sundown Friday to sundown Saturday for religious reasons.

Teresa Brown is a devout Seventh-day Adventist. (Ex. 2 22:4-8, 20-24, 109:5-7.) Like

millions of Adventists around the world, she believes her Sabbath—sundown Friday to sundown

Saturday—is a holy time during which she must abstain from paid work. (Ex. 2 22:4-6, 16-18,

122:18-19.) During this time, Ms. Brown attends church services and reads the Bible. (Ex. 2

22:4-8, 20-22.)

Ms. Brown is also a wife and mother of three young children, and for many years she

worked two jobs to support her family. (Ex. 2 10:17-11:2; Ex. 7 p. 9-10.) But no matter her

financial situation, Brown has never worked on her Sabbath. (Ex. 2 109:5-7.)


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B. Ms. Brown applies to be a correctional officer at CDCR, making clear in a lengthy hiring process that she would work any place and at any time except her Sabbath.

Ms. Brown applied to become a correctional officer (CO) in September 2013. (Ex. 2

65:7-10; Ex. 8.) In her application, Brown indicated she was willing to work at any of CDCR’s

117 facilities, including in remote and isolated areas. (Ex. 2 113:23-114:3; Ex. 9 p. 2; Ex. 17

2:26-28.)

Ms. Brown had already been working as a nurse’s assistant at a CDCR medical-prison

facility when a CO there mentioned CDCR was hiring more COs and urged her to apply. (Ex. 2

14:7-15:10, 23:23-24:6.) Shortly after Brown filed her written application, CDCR announced

plans to hire 7,000 new COs over the next three years due to an increase in retirements. (Ex. 10

3:23-27.)

The hiring process for COs is lengthy and intense, involving a variety of successive steps

often spanning a full year. (Ex. 11 p. 2.) After submitting her written application, Ms. Brown

made multiple trips to CDCR facilities to take a written exam and a physical-fitness test, passing

both. (Ex. 2 33:24-34:6, 34:15-17, 54:19-55:3; Ex. 10 4:1-15; Ex. 4 107:6-9, 109:21-110:2.)2

Having passed the written and physical tests, Ms. Brown was then invited for a sit-down

interview with Sergeant Shannon Beaber. (Ex. 12; Ex. 13 2:3-8; Ex. 10 5:5-9.) This interview,

which took place in April 2014 and was recorded, focused on confirming the accuracy of written

background information Brown had provided and anything else Beaber thought needed

explanation. (Ex. 12; Ex. 13 2:16-24; Ex. 4 118:1-4, 21-23; Ex. 7.)

During the interview, Sgt. Beaber raised the subject of Ms. Brown’s prior indication in

writing that, in the words of a CDCR form, she was not “freely willing to work split shifts,

nights, weekends and holidays” due to her religious obligation not to work sundown Friday to

sundown Saturday. (Ex. 7 p. 25.) Brown repeated to Beaber her belief about the Sabbath but also

made clear she would work any other day or hour. (Ex. 12; Ex. 13 27:4-28:22; Ex. 4 127:19-25.)

2 The physical-fitness test was scheduled for a Saturday, but after Brown alerted CDCR to the conflict with her Sabbath, CDCR moved her test to a weekday. (Ex. 8 p. 2; Ex. 10 4:16-5:4.)


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Beaber understood, asking only that Brown provide a supporting letter from her pastor—which

she did. (Ex. 4 122:18-20, 123:6-15, 137:1-18.)

C. CDCR rejects Ms. Brown for her inability to work on her Sabbath but considers noparticular job assignment, schedule, or location.

Because she had never dealt with an applicant who could not work on a particular day of

the week—for religious or other reasons—Sgt. Beaber approached her supervisor, Lieutenant

Steven Cox, to discuss Ms. Brown’s application. (Ex. 3 90:16-19, 91:16-19; Ex. 4 140:4-21,

142:20-143:21.)

But Lt. Cox was also unsure how to handle the matter. He later testified he was trained

to give “honest thought” to religious-accommodation requests and “couldn’t just out of hand

deny [them].” (Ex. 3 30:6-11, 32:5-9.) So Cox did “some research” by looking at “old

documents” and the labor agreement for COs. (Ex. 3 100:5-12, 103:4-22.) Finding nothing about

religious accommodation, however, he ended his search. (Ex. 3 102:23-103:12.) Cox did not

review CDCR’s Equal Employment Opportunity policy, which required “reasonable

accommodation” for a “bona fide religious practice.” (Ex. 3 140:5-12.)

While Lt. Cox acknowledged it might eventually be possible to find a job for Ms. Brown

that would accommodate her religious belief, he questioned her ability to obtain a non-Sabbath

position in the first two years of service, during which new hires are rotated, and through the

seniority-based bidding system thereafter. (See Ex. 3 101:20-102:6, 110:7-19.) Cox also thought

Brown’s inability to work Friday night and Saturday might present obstacles in the case of

emergencies or the need to fill in for others. (Ex. 3 100:16-101:1, 101:6-19.)

In making his decision, Lt. Cox did not examine any particular post or schedule at any of

CDCR’s 117 facilities, nor did he talk to any warden or anyone else in charge of assigning posts

or schedules. (Ex. 3 103:4-12, 104:2-6, 105:5-10, 106:22-107:4, 148:25-149:1-7; Ex. 17 2:26-

28.) Cox also failed to confer with any of CDCR’s “EEO coordinators” or “labor relations

analysts,” who are charged with handling accommodation requests and collective-labor policies

and procedures, respectively. (Ex. 3 146:24-147:16; Ex. 21 Ch. 3, Art. 1, 31010.4; Ex. 14; Ex. 5


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25:7-27:9.) Finally, Cox did not consider posts filled according to management discretion (rather

than seniority), which constitute all jobs in an officer’s initial years of service and 30% of those

thereafter—almost all of which are interchangeable with seniority posts. (Ex. 3 106:22-107:4;

Ex. 6 66:1-18, 73:5-18, 76:24-77:2.) Although Cox maintained that “just because management

controls 30 percent, [it] doesn’t mean they’re always available,” he nonetheless agreed that these

posts could be used as employee accommodation. (Ex. 3 102:7-10, 60:18-25.)

In any event, four months after her interview CDCR sent Ms. Brown a letter telling her it

would not hire her because, in its view, she was not “[w]illing[] to work day, evening, or night

shifts, weekends and holidays and to report for duty at any time an emergency arises.” (Ex. 15 p.

1; Ex. 4 145:12-16, 147:4-10.) Sgt. Beaber and Lt. Cox testified that their conclusion about

Brown not being “freely willing” to work at these times was due to her inability to work

sundown Friday to sundown Saturday, i.e., on her Sabbath. (Ex. 4 149:14-150:4; Ex. 3 99:5-20.)

And although Cox denied Brown’s religious status came into play, CDCR’s PMK on

accommodation policies testified she doubted Sabbath observers could ever be hired as

correctional officers. (Ex. 3 99:5-20, 111:16-112:12; Ex. 5 110:23-111:19 [doubting “that that

possibility [of service] exists”].)

D. CDCR is a large and nimble employer, with scores of facilities and thousands of correctional officers who are assigned schedules at its sole discretion.

1. CDCR has a multi-billion-dollar budget and an officer staff of thousands.

CDCR operates our state’s prison and parole system, which includes the supervision

and care of all its inmates. (Ex. 18.) To this end, CDCR runs 117 prisons and other facilities. (Ex.

17 2:26-28.) The system’s annual budget during the period relevant to this case was $9 billion.

(Ex. 18.) And with more than 60,000 employees, CDCR “is one of California’s largest

employers.” (Answer; Ex. 17 2:26.)

As for its Correctional Officers, they are entry-level peace officers charged with

supervising, disciplining, and caring for inmates. (Ex 19.) A CO’s duties may include monitoring

inmates in a housing unit, escorting inmates throughout an institution, transporting inmates to


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court or medical appointments, working in the kitchen, or supervising work-crew operations

outside the institution. (Ex. 3 37:21-38:12).

CDCR has tens of thousands of COs; as of August 2014, the twelve institutions within

150 miles of Ms. Brown’s home had more than 6,000. (Ex. 17 2:26-28, 3:6-19.) As noted above,

CDCR sought to hire 7,000 new COs when Brown applied. (Ex. 10 3:23-27.)

2. CDCR retains exclusive authority to assign its officers to particular facilities and schedules in their first two years of service, and significant discretion thereafter.

Once hired, COs spend several weeks at a system-wide training academy, and then report

to institutions across the state for a two-year apprenticeship period. (Ex. 3 38:21-39:19, 50:15-

17; Ex. 5 64:1-12.) Although CDCR considers the geographic preferences of officers, it has full

discretion in making apprenticeship assignments. (Ex. 3 38:21-39:19; Ex. 5 64:1-12.) CDCR also

has discretion to set work schedules in these first two years, as employees are not yet protected

by any collective bargaining agreement. (Ex. 3 50:15-17; Ex. 5 64:1-12.)

Following apprenticeship, COs come under a collective bargaining agreement that allows

them to bid for schedules based on their preferences and seniority (i.e., “post and bid”). (Ex. 5

58:23-59:10, 60:6-8.) But the agreement exempts 30% of CO posts, which are filled at

management’s discretion without seniority as a constraint on scheduling or tasks. (Ex. 5 60:25-

61:4; Ex. 20, S. 12.07.) These management posts are “scattered all over the institution,” and with

varied schedules—including non-Sabbath positions (e.g., Sunday-Thursday, Monday-Friday).

(Ex. 5 60:25-61:4, 69:14-22; 75:25-76:2; Ex. 6 73:12-18.)

While a few select posts must be management-determined, the vast majority of the 30%

management positions are flexibly assigned and involve tasks that are interchangeable with the

70% determined by seniority. (Ex. 6 73:12-18, 64:13-25, 66:1-18, 67:5-68:9, 75:1-76:3, 77:13-

78:2.) CDCR therefore designates identical posts as either management or seniority. For

example, nearly 30% of all “first watch” (10 p.m. to 6 a.m.), Monday-Friday posts—or, for that

matter, any non-Sabbath assignment—are filled at management discretion. (Ex. 6 71:1-72:2.)


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3. CDCR also regularly allows shift swaps or pays overtime to cover absences, and retains broad discretion over staffing in emergency situations.

The ability of all COs to swap shifts, whether in a 30% management post or not, provides

additional flexibility to their schedules. COs can swap individual shifts with each other for any

reason, and these requests are typically approved. (Ex. 3 61:12-19, 62:16-64:14; Ex. 21 Ch. 3,

Art. 20, 33010.17.) CDCR’s scheduling PMK testified further that newly hired COs can arrange

one swap a week during their first year of service, and there is no cap on the number of swaps an

officer can arrange thereafter. (Ex. 6 90:16-91:10.)

In addition to shift swaps, CDCR retains “relief officers” to cover absences in certain

circumstances. (Ex. 6 35:1-4.) CDCR also fills gaps with volunteers. (Ex. 5 79:3-86:24; Ex. 21

Ch. 8, Art. 37, 85030.18.) Because volunteering provides the opportunity for overtime pay, it is

offered by seniority and is in demand. (Ex. 6 47:6-17; Ex. 5 84:22-85:1). If all else fails, CDCR

can fill absences by paying overtime to involuntary substitutes. (See Ex. 20 S. 12.06.) And

although those conscripted are called by reverse seniority, CDCR aims to allocate such undesired

shifts fairly across all COs and discourages assignments to a CO immediately after her regular

work week. (Ex. 20 S. 12.06; Ex. 5 81:23-82:22, 83:18-84:9.)

Finally, CDCR responds to emergencies in a number of flexible ways. While CDCR has

the option of requiring COs to report involuntarily, its scheduling PMK testified that “rarely”

would such a need ever arise. (Ex. 6 80:2-9, 82:17-20.) Instead, CDCR enlists volunteers or

holds over COs already working; Ms. Brown testified she would be willing to be held over on a

Friday shift in an emergency. (Ex. 6 77:22-78:2, 79:21-80:1; Ex. 2 27:13-15, 118:22-119:5.)

CDCR does not require COs on military or FMLA leave to report in emergencies, and retains

discretion not to discipline those who are absent for other reasons—even if the employee is

AWOL. (Ex. 6 85:7-86:14, 103:10-104:3; see also Ex. 21 Art. 22 S. 33030.16, p. 242.)


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ARGUMENT I. SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment if she can show there is no triable issue

of material fact and is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A triable issue exists only if the non-moving party offers sufficient evidence that allows a

reasonable trier of fact to find for it. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850, as modified (July 11, 2001).) And the summary-judgment burden tracks that of trial; if, for

example, the case turns on an affirmative defense or other matter on which the defendant has the

burden and that defense is unsupported, the plaintiff deserves summary judgment. (Id. at p. 851.)

II. CALIFORNIA LAW IS STRICT: AN EMPLOYER CANNOT REJECT A JOB APPLICANT FOR OBJECTING TO SABBATH WORK UNLESS IT CAN SHOW IT EXPLORED ALL OPTIONS BUT COULD NOT HIRE THE APPLICANT ABSENT SIGNIFICANT DIFFICULTY OR EXPENSE.

The Fair Employment and Housing Act (FEHA) prohibits an employer from rejecting a

job applicant because of a conflict between her religious practice and any job requirement, unless

the employer can show that after exploring any available reasonable alternative her hiring would

cause it undue hardship—which the statute further defines as “significant difficulty or expense.”

(Gov. Code, §§ 12926, subd. (u), 12940, subd. (l)(1).) Additionally, FEHA includes as a

protected belief the “observance of a Sabbath or other religious holy day or days.” (Gov. Code,

§ 12940, subd. (l)(1).)

Burden Shifting

California courts apply a burden-shifting analysis to religious-accommodation claims. To

establish a prima facie case, a plaintiff must show: (1) a sincere religious belief; (2) the employer

knew of the belief; and (3) the belief conflicted with a work requirement. (Cal. Fair Empl. &

Hous. Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011.)3

3 Unlike in the disability-accommodation context, which requires applicants to show they can perform the “essential functions” of the position they were seeking with or without accommodation, FEHA’s religious-accommodation obligation is triggered by “a conflict” with “any job requirement.” (Gov. Code, §§ 12926(f), 12940(a)(1), (l)(1); see


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Once the plaintiff has established a prima facie case, the burden shifts to the employer to

show “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.) Only if the employer can show that “no accommodation would be possible without undue

hardship is it excused from taking the necessary steps to accommodate the employee’s religious

beliefs.” (Opuku-Boateng v. State of Cal. (9th Cir. 1996) 95 F.3d 1461, 1467.)

Accommodation Efforts

FEHA requires employers to have “explored any available reasonable alternative means”

of resolving a conflict with religious practice. (Gov. Code, § 12940, subd. (l)(1) [employer

prevails only if it demonstrates it has explored alternatives “but is unable to reasonably

accommodate the religious belief or observance without undue hardship”].) Courts have

considered, for example, whether the employer tried to locate substitute employees to fill the

missing time, arrange shift swaps, or consult with the union or legal counsel. (See, e.g.,

Soldinger v. Northwest Airlines, supra, 51 Cal.App.4th at p. 373; Cook v. Lindsay Olive

Growers, supra, 911 F.2d at p. 241.) Even where seniority is implicated, an employer must still

explore other options. (Balint v. Carson City (9th Cir. 1999) 180 F.3d 1047, 1049.) And when a

seniority system allows for exceptions to seniority rules, the employer cannot rely on seniority

alone to refuse accommodation in any event. (See U.S. Airways, Inc. v. Barnett (2002) 535 U.S.

391, 405; see also Cal. Code Regs. tit. 2, § 11068, subd. (d)(5) [employer’s reliance on seniority

in disability context is limited where it allows variations to that rule].)

“Significant Difficulty or Expense”

As for undue hardship, it cannot be stressed enough that the FEHA standard which

also Judicial Council of California Civil Jury Instruction 2560 [plaintiff need only prove conflict with “a job requirement”].) This makes particular sense with Sabbath observance, where the accommodation FEHA contemplates during that time is relief from all duties. (Gov. Code, § 12940(l)(1) [protecting “observance of a Sabbath” and “suggesting as a reasonable accommodation in the case of a (Sabbath) conflict with job duties “the possibilit[y] of excusing the person from those duties . . . or permitting those duties to be performed at another time or by another person”].)


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employers must meet in the religion context is “significant difficulty or expense,” which is the

same test for disability and among the strictest in the land. (Gov. Code, §§ 12926, subd. (u),

12940, subds. (l) & (m).)4 It is not the “de minimis” test of Title VII. (Ops. Cal. Legis. Counsel,

No. 0005360 (Aug. 28, 2012) Discrimination in Employment: Reasonable Accommodations

Law (Assem. Bill No. 1964) (2010−2012 Reg. Sess.) p. 2 [“[T]his bill would . . . clarify[] that

the FEHA definition of undue hardship applies to the FEHA religious discrimination section

(rather than the ‘de minimus’ [sic] standard under federal law)].”) And for an employer to

prevail, it must prove significant difficulty or cost for each and every potential accommodation.

(Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1469 [requiring employer to show “the

various potential accommodations would all have resulted in undue hardship”].) (Italics added.)

In demonstrating whether an accommodation poses “significant difficulty or expense,”

speculative harm is not enough. (EEOC v. Abercrombie & Fitch Stores, Inc. (N.D. Cal. 2013)

966 F.Supp.2d 949, 962.) Rather, the employer must show concrete damage that would have in

fact occurred. (Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1474 [“concrete” hardships

must be shown]; Burns v. Southern Pacific Transportation Co. (9th Cir. 1978) 589 F.2d 403, 406

[hardships must “actually” result] [citation omitted].) Moreover, hypothetical hardships based on

assumptions about untried options will not do. (Abercrombie, supra, at p. 962; see also Anderson

v. General Dynamics Convair Aerospace Division (9th Cir. 1978) 589 F.2d 397, 402 [“Undue

hardship cannot be proved by assumptions nor by opinions based on hypothetical facts”].) It goes

without saying that these proof requirements of concrete, non-hypothetical, tested harm are

particularly salient in the application context.

Turning finally to the degree of harm required, hardships are not assessed in the abstract

but are pegged to the particular employer’s size and resources. (See Gov. Code, § 12926, subd.

(u).) FEHA lists five factors to consider in determining whether an accommodation would have

4 We know of only three places with a standard similar to California’s “significant difficulty or expense” test for employers to be absolved from accommodating religion: New Jersey (N.J. Stat. Ann. § 10:5-12(q) (West 2014)), Oregon (Or. Rev. Stat. § 659A.033(4) (2011)), and New York City (N.Y. Exec. L. § 296(10)(d) (2016)).


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been too difficult or costly: (1) the nature and cost of the accommodation; (2) the financial

resources and number of employees of the facilities involved in the accommodation; (3) the

overall size and financial resources of the employer, including the number of employees and

facilities; (4) the nature of the employer’s work, including structure and employee

responsibilities; and (5) the distribution of the employer’s physical locations. (Gov. Code, §§

12926, subd. (u), 12940, subd. (l)(1).)

Consequently, not only do all California employers bear the heightened burden to show

significant difficulty or expense, but large, high-budget, and resourceful employers like CDCR

face an even steeper climb. (See Cooper, Overcoming Barriers to Employment: The Meaning of

Reasonable Accommodation and Undue Hardship in the Americans with Disabilities Act, (1991)

139 U.Pa. L.Rev. 1423, 1449-50 [summarizing analogous hardship factors in disability context,

stressing the difficulty for large employers].) In such cases, accommodations costing even

thousands of dollars are required. (See, e.g., Nelson v. Thornburgh (E.D. Pa. 1983) 567 F.Supp.

369, 380, aff'd sub nom. Appeal of Thornburgh (3d Cir. 1984) 732 F.2d 147 [holding in disability

context that accommodation at annual cost of $6,638 was not a significant expense to a public

employer with $300 million budget].)

III. CDCR LOSES BECAUSE IT CANNOT SHOW IT TRIED TO ACCOMMODATEMS. BROWN, OR THAT DOING SO WAS TOO DIFFICULT OR COSTLY.

A. Ms. Brown has a prima facie case because CDCR understood her Sabbath conflict.

CDCR cannot dispute Ms. Brown’s prima facie case, i.e., (1) sincere religious belief, (2)

employer knowledge, and (3) a conflict with a job requirement. (Cal. Fair Empl. & Hous. Com.

v. Gemini Aluminum, supra, 122 Cal.App.4th at p. 1011.) First, Ms. Brown is a lifelong Seventh-

day Adventist who has consistently observed the Sabbath. Second, she notified CDCR during the

hiring process that her faith requires her to abstain from work Friday sundown to Saturday

sundown, and even supplemented her request with a letter from her pastor. (Ex. 7 p. 25; Ex. 12;

Ex. 13 27:4-29:10.) Moreover, her interviewer, Sergeant Beaber, acknowledged she understood

Ms. Brown’s Sabbath observance. (Ex. 4 122:18-20, 123:6-15.) Third, CDCR sent Ms. Brown a


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letter rejecting her application solely based on her unavailability to work on her Sabbath. (Ex. 15

p. 1.)

B. CDCR cannot sustain its heavy burden under California law because it failed to explore reasonable available accommodation options.

Because Ms. Brown has established a prima facie case, CDCR must show it “explored

any available reasonable alternative means of accommodating” her Sabbath but could not in fact

accommodate absent undue hardship. (Gov. Code, § 12940, subd. (l)(1).) In exploring these

options, CDCR must make “good faith efforts,” as evidenced by such steps as looking into

possible shift adjustments, reaching out to other employees and/or union officials, or

investigating exceptions to applicable seniority rules. (Soldinger v. Northwest Airlines, supra, 51

Cal.App.4th at p. 373; see also Balint v. Carson City, supra, 180 F.3d at p. 1049; Cook v.

Lindsay Olive Growers, supra, 911 F.2d at p. 241.) Unfortunately for CDCR, Lt. Cox’s cursory

exercise in “honest thought” just doesn’t cut it.

The list of CDCR’s efforts to consider accommodating Ms. Brown’s Sabbath observance

borders on the embarrassing: Lt. Cox looked at the labor contract for non-probationary officers,

some unspecified “meeting minutes,” and a few “old documents.” (Ex. 3 100:6-12, 103:4-22.)

When he found no guidance, he gave up. (Ex. 3 100:6-12, 103:4-22.) Cox did not review

CDCR’s EEO policy on religious accommodations. (Ex. 3 140:5-12.) Nor did he consult anyone

else for guidance or input, despite his limited experience in these matters. (Ex. 3 30:6-11, 32:5-9,

104:2-6.) Cox contacted no EEO coordinator, no labor-relations analyst, no warden, and no

union official, nor any correctional officer to see if they could make it work. (See Opuku-

Boateng v. State of Cal., supra, 95 F.3d at p. 1472 [rejecting employer’s efforts as inadequate

even when they included a poll of other workers to see if they would help].)

Though Lt. Cox “came up” with possible conflicts with Ms. Brown’s Sabbath, including

complications with rotations in her first two years of service, seniority issues thereafter, and the

need to work in emergencies or to fill gaps, his private brainstorming was both speculative and

wrong. (Ex. 3 100:13-103:12, 110:7-19.) Cox, for example, failed to contact anyone at the


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apprenticeship program or explore job assignments there to see what accommodation options

might have been available—something that would seem feasible given management’s discretion

over that program. (Ex. 3 103:9-12, 104:2-6, 105:5-10, 106:22-107:4, 149:1-7.) Similarly, Cox

failed to look at a single post in any of CDCR’s 117 facilities where Brown was willing to work,

including the possibility of a 30% management-determined post over which CDCR also had total

authority. (Ex. 3 105:5-10; 106:22-107:4; Ex. 17 2:26-28; Ex. 20 S. 12.07.) And regardless of

post, Lt. Cox never looked at, much less tried to facilitate, the option of shift swaps, vacation,

holiday, or sick leave; or even unpaid leave. (Ex. 3 61:12-19, 62:16-64:14, 100:13-108:25.) Nor

did he contemplate the infrequency of emergencies on the Sabbath or, in managing involuntary

substitutes, the implications of Brown’s willingness to work undesirable shifts at any other time

of the week. (Ex. 3 61:12-19; 62:16-64:14; 100:13-108:25; Ex. 21 Ch. 3, Art. 20, 33010.17.)

Finally, Cox failed to consider a patchwork of options if “one by itself” wouldn’t do. (Opuku-

Boateng v. State of Cal., supra, 95 F.3d at p. 1473.)

Finally, neither Lt. Cox nor anyone else opted for just giving it a try to see whether an

intractable conflict would in fact arise. It is hard to fathom without its ever trying that CDCR

could show all of the many options it had would have resulted in undue hardship. (See Burns v.

Southern Pac. Transp. Co., supra, 589 F.2d at pp. 406-07 [employer is “on stronger ground

when [it] has attempted various methods of accommodation and can point to hardships that

actually resulted”]; see also Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1474 [same].)

C. CDCR also cannot prevail because it fails to demonstrate all options for accommodating Ms. Brown would have been too difficult or costly.

1. CDCR could have appointed Ms. Brown to one of many thousands of management-determined posts, which it can assign at its discretion regardless of seniority.

CDCR never considered placing Ms. Brown in a management-determined post that did

not require Sabbath work. (Ex. 3 106:22-107:4.) Instead, it assumed she would need to engage in

the seniority-based bidding process. (Ex. 3 101:6-102:17, 106:22-107:4.) This is not just

speculative; it is indisputably false. Management has total discretion in assigning apprenticeships


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and 30% of posts thereafter. (Ex. 3 38:21-39:19; Ex. 5 64:1-12.) Moreover, most such posts

involve duties that are interchangeable with seniority-based posts. (Ex. 6 66:1-18, 73:5-18,

76:24-77:2.) In any event, the mere fact that these assignments are available to management

defeats any claim of hardship, much less one causing “significant difficulty or expense.” (See

Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1467 [only if “no accommodation would be

possible without undue hardship is [an employer] excused”].)

Specifically, CDCR could have placed Ms. Brown in almost any open, management-

determined shift anywhere in the state that did not require work on the Sabbath; after all, she was

willing to work anywhere and at any other hour or day. (Ex. 6 66:1-18, 73:5-18, 76:24-77:2; Ex.

12; Ex. 13 27:4-28:24; Ex. 4 127:19-25.) CDCR employs tens of thousands of COs and runs

scores of facilities. (Ex. 17 2:26-28.) Moreover, CDCR was looking to hire 7,000 new COs when

Brown applied, yielding a wide variety of new positions and shifts. (Ex. 10 3:23-27.) Lt. Cox

speculated that “just because management controls 30%, [it] doesn’t mean they’re always

available.” (Ex. 3 102:7-10.) But CDCR cannot show such an obstacle was “significant” where

(1) these posts number in the thousands; (2) Brown had total location flexibility; and (3) they

only had to be a temporary fix (i.e., Brown would need such an assignment only until she had

seniority for another). (See Gov. Code, § 12926, subd. (u) [considering employee numbers,

geography, and the nature of the accommodation for undue hardship].)

2. CDCR could have assigned Ms. Brown to a non-management post subject to seniority but temporarily allowed shift swaps or provided substitutes in the event of a conflict.

Alternatively, CDCR could have tried to accommodate Ms. Brown without making an

exception to seniority by simply allowing her to bid on a 70% post. Who knows, she may have

won a Monday-Friday or Sunday-Thursday schedule. And if not, CDCR cannot show options

like holiday-pay use, voluntary swaps, or CDCR-facilitated substitutes, or a combination thereof,

would have caused undue hardship—especially since these measures would be needed only until

Brown had seniority to find an open non-Sabbath post that could pop up at any time. (See Ex. 5

58:14-60:2.) FEHA expressly suggests “excusing the person from those duties that conflict with


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his or her religious belief or observance or permitting those duties to be performed at another

time or by another person.” (Gov. Code, § 12940, subd. (l).) CDCR cannot show such an

exception would cause undue hardship.

Indeed, even if Ms. Brown were unable to secure a non-Sabbath, non-management shift

through bidding, she could have covered her own absences through holiday-work credit or shift

swaps at no cost or inconvenience to CDCR. When Brown applied, CDCR allowed those who

work holidays to “take a day off here or a day off there” in exchange. (Ex. 6 18:11-23, 19:15-18.)

Because Brown was willing to work every (non-Sabbath) holiday, she could’ve earned and used

these credits for Sabbath absences. As for swaps, CDCR points to its rule that COs cannot swap

in their first three months of service. (Ex. 3 64:25-65:6.) But CDCR has total discretion over

assignments in those months, so could allow it; and swaps thereafter are available once a week,

which resolves the issue. In any event, by not even trying swaps or holiday credit, CDCR cannot

prevail. (See Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1474 [in Sabbath case, urging

public employer with 24/7 operations to “experiment,” stating, “[a]t the very least, the State

should have either temporarily scheduled [the plaintiff] not to work on the Sabbath or sought to

obtain voluntary shift trades for him on a short- or long-term basis”].)

CDCR also could have covered Ms. Brown’s absences through substitutes until she had

seniority to secure a non-Sabbath post. Signing up for such vacant shifts provides overtime, so it

is allotted by seniority and considered a perk. (Ex. 4 89:23-90:8; Ex. 5 81:19-22, 84:22-85:1; Ex.

6 47:9-17). To take an extreme example, even if CDCR had no other option—unlike here—it

could have covered Brown’s Sabbath for a few thousand dollars per year; and again, this would

be a temporary expense until she had enough seniority.5 With a $9 billion budget, CDCR cannot

show this would be too costly. (See Nelson v. Thornburgh, supra, 567 F. Supp. at pp. 376, 380

5 This extreme hypothetical is based on the expectation CDCR would pay the substitute overtime for about 50 weeks, less the regular pay it would owe Brown. Correctional officers start at about $22 per hour. (Ex. 20 S. 15.01.B.1, p. 131-33; Ex. 22.)


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[finding disability accommodation costing $6,638 for a public employer with a budget of $300

million was not a “significant difficulty or expense”].)

Finally, the fact that CDCR provides leave in other situations, such as illness, vacation,

and pregnancy, shows it was feasible to accommodate Ms. Brown with the temporary use of

substitutes, with or without overtime. (Ex. 6 55:1-23, 57:4-9, 88:13-18.)

3. CDCR could have assigned Ms. Brown to a non-management post, allowing a limited seniority bid exception until she could avoid Sabbath work on that basis.

CDCR also could have placed Ms. Brown in a non-management post (70% of all posts)

while ensuring her appointment to a job without Sabbath work by making a one-time exception

to seniority. CDCR claims it cannot exempt Brown from bidding for fear of contravening the

union seniority system. (Ex. 3 110:7-19.) But an employer cannot hide behind a seniority rule to

avoid its duty to accommodate; as the Ninth Circuit has held, the “mere existence of a seniority

system does not relieve an employer of the duty to attempt reasonable accommodation” that

would otherwise not cause undue hardship. (Balint v. Carson City, supra, 180 F.3d at p. 1049.)

More to the point, an accommodation requiring a seniority exception may not constitute

undue hardship if exceptions already exist. As the U.S. Supreme Court has observed under

federal disability law—which, like FEHA, defines undue hardship as “significant difficulty or

expense”—plaintiffs can show an accommodation conflicting with a seniority rule is reasonable

if there are exceptions to the policy such that one more “is unlikely to matter.” (U.S. Airways v.

Barnett, supra, 535 U.S. at pp. 405-06.) Indeed, Barnett’s one-more-exception analysis is picked

up in our state’s own FEHA regulations on disability. (See Cal. Code Regs. tit. 2, § 11068, subd.

(d)(5) [restricting reliance on seniority where policy allows variations].) CDCR has made an

exception for 30% of all CO posts across the state; it could have (temporarily) made one more

for Ms. Brown without unduly impacting the rights and expectations of others.


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4. CDCR cannot justify Ms. Brown’s rejection based on the need for emergency or involuntary substitution, as those instances are rare or can be handled.

In a last-ditch effort, CDCR claims that even if Ms. Brown was not otherwise scheduled

to work on her Sabbath it could not accommodate her because of the possibility of call-up in an

emergency, likening its correctional officers to the military. (ROA #47 13:15-14:8, 15:15-19.)

CDCR also suggests Brown might need to serve as an involuntary substitute in the event of

another CO’s absence. (Ex. 3 100:2-5, 101:6-13.) Neither of these situations, however, can

justify CDCR shutting the door on Brown—or, for that matter, anyone who abstains from work

for religious reasons for any period of time at all.

Turning first to involuntary substitution, any hardship arising from Ms. Brown’s inability

to be called in to work under such circumstances is speculative at best. Since CDCR discourages

overtime following the last day of a work week, extra work on the Sabbath would be unlikely

had Brown been accommodated with a Monday-Friday job. (See Ex. 20 p. 97; Ex. 5 83:18-84:9.)

And since CDCR’s policy on involuntary call-in is concerned with allocating a fair share of such

undesired work, Brown’s willingness to perform undesirable shifts any other time—including

nights, Sundays, and holidays—makes alleged imposition on others a non-starter. (Ex. 5 81:23-

82:22; Ex. 20 S. 12.06; Ex. 4 127:19-25; see also Opuku-Boateng v. State of Cal., supra, 95 F.3d

at p. 1470 [no “cognizable burden” on others in Sabbath-accommodation case where they would

only be “assigned one undesirable shift instead of another” in 24/7 operation].)

As for mandatory call-ins during emergencies, CDCR’s PMK testified they “rarely”

occur. (Ex. 6 80:2-9, 82:17-20.) The slim chance of a call-in on a particular day of the week,

therefore, makes the possibility of an actual conflict with Ms. Brown’s Sabbath even more

remote. The “mere possibility” of hardship cannot justify refusing to hire a Sabbath-observer.

(See Opuku-Boateng v. State of Cal., supra, 95 F.3d at p. 1474.) Were the rare emergency

nonetheless to arise while she was at work—e.g., on a Friday—Brown was willing to stay to do

the job. (Ex. 2 27:10-15, 118:18-119:5.) And even in the event an emergency otherwise arose

when Brown was absent, CDCR could have then decided whether or not to fire her—unlikely


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given CDCR’s discretion over leave and progressive discipline—rather than outright refusing to

hire her. (Ex. 6 85:7-86:14, 103:10-104:3; see also Ex. 21 Art. 22 S. 33030.16; see also EEOC v.

Abercrombie & Fitch Stores, supra, 966 F.Supp.2d at p. 962-64 [requiring concrete evidence of

actual hardship].) None of this is meant to diminish the importance of prison safety; rather it

shows CDCR should balance that need with the civil rights of those seeking to join its ranks. If

the safety of our state prisons depends on the availability of every single one of its tens of

thousands of correctional officers at every hour of every day, CDCR has much bigger problems

than this lawsuit.

5. In any event, CDCR made its decision based on speculative hardship.

Even if CDCR had taken the proper steps to search for accommodations—it did not—its

rejection of Ms. Brown’s application due to her Sabbath observance violates FEHA in any event

because it had options available that were not significantly difficult or expensive. As it stands,

CDCR can point only to hypotheticals or conceivable conflicts, which are insufficient to make an

undue-hardship defense. (See EEOC v. Abercrombie & Fitch Stores, supra, 966 F.Supp.2d at p.

962 [rejecting “[h]ypothetical or merely conceivable hardships”].)

Lt. Cox made his decision in the dark: Where and how might Ms. Brown be assigned her

apprenticeship, and how would her superiors handle any religious conflict? Would she then be

given a post-and-bid or management post, and under what schedule or terms? How might

Brown’s superiors treat her inability to work her Sabbath coupled with her willingness to work at

every other hour or day of the week? Cox’s limited, subjective, and presumptive take on such

indeterminacies cannot offer the proof of actual disruption our legislature requires given the

stakes for the faiths and livelihoods of applicants. (See Anderson v. General Dynamics Convair

Aerospace, supra, 589 F.2d at p. 402 [“Undue hardship cannot be proved by assumptions nor by

opinions based on hypothetical facts”].)


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IV. BECAUSE IT REFUSED TO HIRE MS. BROWN DUE TO A RESOLVABLE CONFLICT BETWEEN HER RELIGIOUS PRACTICE AND ITS JOB RULES, CDCR COMMITTED ILLEGAL RELIGIOUS DISCRIMINATION.

Ms. Brown also raises a discrimination claim under FEHA. FEHA’s non-discrimination

provision forbids adverse action “because of a conflict between the person’s religious belief or

observance and any employment requirement” unless accommodation is infeasible. (Gov. Code,

§ 12940, subd. (l)(1).) CDCR loses here for the same reasons it does on the failure-to-

accommodate claim. FEHA further prohibits employers from treating religious beliefs or

observances differently than non-religious ones. (Gov. Code, §§ 12940, subd. (a), 12926, subd.

(q) [prohibiting disparate treatment based on “religious belief, observance, and practice”].)

CDCR ran afoul of FEHA on this ground as well when it refused employment to Brown for her

inability to work on her Sabbath despite accommodating similar non-religious absences.

As the U.S. Supreme Court made clear in Abercrombie & Fitch, “the rule for disparate-

treatment claims based on a failure to accommodate a religious practice is straightforward: An

employer may not make an applicant’s religious practice . . . a factor in employment decisions.”

(EEOC v. Abercrombie & Fitch Stores, supra, 135 S.Ct. at 2033.) And because the law protects

not only religious status but also “‘observance and practice,’” the Court observed, it gives

religion “favored treatment” even where neutral job rules are applied. (Id. at p. 2033-34.)

To make out a claim for disparate treatment in this context, an applicant need only

show: (1) she held a bona-fide religious belief, the practice of which conflicted with an

employment duty; (2) that practice was a “motivating factor” in the employer’s decision; and (3)

the employer refused to hire because of the applicant’s inability to fulfill the job requirement.

(Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶ 7:620

[citing the U.S. Supreme Court in Abercrombie].) None of these factors are disputed here; in

fact, Brown’s inability to work the Sabbath was the motivating factor in her rejection. CDCR’s

action violates FEHA’s disparate-treatment provision as well as its accommodation rule.6

6 To the extent CDCR attempts any undue-hardship defense, it fails for the same reasons described above.

Attorneys for Plaintiff - Stanford Law School...2015/06/02 · California provides broad protection...

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