Does Washington law protect freedom of religion?

From a practical perspective, the Washington Law Against Discrimination (WLAD) prohibits disparate impact on a protected class caused by a facially neutral employment policy. If an employee calls his employer’s attention to a disparate impact perhaps unknowingly caused by an employment policy, and requests a change as an accommodation, and if that employer rejects the request, and chooses to impact a protected class while a reasonable alternative would avoid the discrimination, at some point the employer’s discrimination becomes deliberate. Thus, while the “duty to accommodate” may not be expressly written in the text of WLAD, it is a necessary inference in the general prohibition against discrimination. It is a logical consequence of anti-discrimination laws.The purpose of the WLAD is to fulfill “the provisions of the Constitution of this state concerning civil rights.” RCW 49.60.010. The Washington State Constitution explicitly provides for religious freedom: “Absolute freedom of conscience in all matters of religious sentiment, belief and worship shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion.” Wa. Const., Art. I §11. The practice of discrimination against Washington inhabitants due to their creed (i.e. religious or sincerely-held beliefs) “threatens not only the rights and proper privileges of [Washington’s] inhabitants but menaces the institutions and foundation of a free democratic state.” Id.In Grant v. Spellman, 99 Wn.2d 815 (1983), the Washington Supreme Court held that a person could exercise their sincerely held, personal beliefs, in the context of government employment despite the fact that the individual did not adhere to a recognized religious denomination. Grant, 99 Wn.2d at 820. Justice Williams concurred with the result, but wrote separately regarding the duty to accommodate. Id. at 324 (J. Williams, concurring.) Approving of federal law, he wrote, “Failure to accommodate religion when the government could achieve its legitimate goals while granting religious exemptions [results in] hostility toward religion rather than [epitomizing] the essence of neutrality.” Id. (citing L. Tribe, American Constitutional Law 852 (1978)). When the law looks at whether government discriminates against a person for their religious beliefs, the law imposes a duty to accommodate. There is no public policy justification to analyze government discrimination differently from employment discrimination.Given Washington State’s policy of protecting and accommodating religion, the duty to accommodate should be read to inhere in the analysis of the WLAD. It otherwise does not make sense that the statute would prohibit disparate impact (where a policy is unlawful if it falls more harshly on a protected group, and can only become lawful by accommodating that group’s need) while not also creating a duty to accommodate. In other words, refusing reasonable accommodation of religion becomes discrimination. Gate Gourmet invites the court to reject the duty to accommodate. It should explain how its view of the law does not enable discrimination.The Short decision needlessly opined a change in Washington law.The Short Court purported to “clarify the scope of claims addressed in the Hiatt opinion.” Short, 279 P.3d at 909 (citing Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57 (1992)). The Supreme Court in Hiatt explicitly declined to rule on whether the WLAD included a duty to accommodate. Hiatt, 120 Wn.2d at 64. Instead, it suggested that such a duty might be implied by language of the statute, noting that this was an “important and complex question” with potential “constitutional implications.” Id. at 63. No Supreme Court opinion has changed this.The intermediate appellate court in Short changes this position. Short found the duty to accommodate was not implied. Short, 279 P.3d at 910. In reaching this conclusion, it relied primarily on the legislature’s inaction in amending the statute in the wake of the Hiatt decision. The Short decision was textual and tactical. Plaintiffs encourage consistent conceptual analysis and sound public policy. A proper reading of the statute in light of anti-discrimination policy demonstrates that a duty to accommodate flows necessarily.Neither the Supreme Court nor Division I have expressly addressed a “failure to accommodate” claim under state law. However, Washington courts traditionally look to federal interpretations of Title VII for guidance in determining the scope of the WLAD. Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 358-59 (2001). Under Title VII, an employee can state a claim for religious discrimination based on failure to accommodate. Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002) (analyzing Washington law). There is no policy reason to impose a special freedom for employers to discriminate against particular religions in Washington.