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Kumar v. Gate Gourmet, Inc.

Supreme Court of Washington, En Banc

May 22, 2014

James Kumar et al., Appellants ,
v.
Gate Gourmet, Inc., Respondent

Argued October 22, 2013.

Page 194

Aaron V. Rocke, D. James Davis, and Mark Symington (of Rocke Law Group PLLC ); and Seth A. Rosenberg (of Rosenberg Law Group PLLC ), for appellants.

Pamela H. Salgado and Rachelle L. Wills (of Littler Mendelson PC ) ( S. Shane Sagheb of Epstein Becker Green PC, of counsel), for respondent.

George M. Ahrend and Bryan P. Harnetiaux on behalf of Washington State Association for Justice Foundation, amicus curiae.

Tana Lin, Benjamin B. Gould, and Janet S. Chung on behalf of Legal Voice, amicus curiae.

Jeffrey L. Needle and Jesse A. Wing on behalf of Washington Employment Lawyers Association and American Civil Liberties Union of Washington, amici curiae.

Robert W. Ferguson, Attorney General, and Stacia E. Hollar and Sharon M. Payant James, Assistants, on behalf of the Washington State Human Rights Commission, amicus curiae.

AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez.

OPINION

Page 195

[180 Wn.2d 486] Gordon McCloud, J.

¶ 1 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. 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. According to the plaintiffs, the policy forces them to work without food or eat food that violates their religious beliefs. 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. We granted direct review and now reverse.

[180 Wn.2d 487] FACTS [1]

¶ 2 The plaintiffs in this action (the employees) work near Seatac airport for the

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defendant, Gate Gourmet, preparing meals for service on trains and airplanes. 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. Instead, Gate Gourmet provides meals for employees to consume during their break. These meals ostensibly consist of one vegetarian and one meat-based main dish. The employees allege, however, that Gate Gourmet uses animal by-products in the " vegetarian" option. Clerk's Papers (CP) at 14. 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. 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. In particular, the complaint alleges that Gate Gourmet's alleged deception caused " putative class members [to] unknowingly eat[ ] food forbidden by their beliefs," CP at 19, 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." CP at 22.

¶ 3 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 [180 Wn.2d 488] religions" violated the WLAD. CP at 21. 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. The employees' complaint also states claims for the common law torts of battery and negligent infliction of emotional distress. [2]

¶ 4 The trial court granted in full Gate Gourmet's CR 12(b)(6) motion to dismiss the complaint. CP at 118-20. 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. CP at 119. 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. Id. The employees sought and obtained direct review by this court.

ANALYSIS

Standard of Review

¶ 5 All of the issues presented in this case are reviewed de novo. [3] " 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. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233 P.3d 861 (2010).

[180 Wn.2d 489] 1. Does the WLAD require covered employers to make reasonable accommodations for their employees' religious practices?

a. The WLAD creates a private cause of action for employment discrimination on the basis of religion

¶ 6 As originally enacted in 1949, the WLAD prohibited employers from discriminating on the basis of " race, creed, color, or national origin." Laws of 1949, ch. 183, § 7. Today, it prohibits discrimination on the basis

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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." RCW 49.60.180(1). 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). [4] The parties agree that the term " creed" in the WLAD refers to religious belief.

¶ 7 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." RCW 49.60.120(3). In 1973, the WLAD was amended to create a private cause of action against any employer engaging in an " unfair practice ." Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788 (1996); id. at 78 & n.3 (Talmadge, J., dissenting). RCW 49.60.180(3) now provides in relevant part that it is an " unfair practice" for an [180 Wn.2d 490] 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 ... ." The employees brought their class action suit under this provision.

b. Washington courts look to federal antidiscrimination law to help them construe the WLAD's provisions

¶ 8 In the employment context, the WLAD has three federal counterparts: Title VII, the Age Discrimination in Employment Act (ADEA), [5] and the Americans with Disabilities Act (ADA). [6] Title VII has prohibited employment discrimination on the basis of " race, color, religion, sex, or national origin, [etc.]" since 1964, [7] the ADEA has prohibited discrimination against older workers since 1967, and the ADA has prohibited employment discrimination on the basis of disability since 1990. The WLAD's employment provisions were amended in 1961 to prohibit age discrimination, [8] in 1971 to prohibit sex discrimination, [9] and in 1973 to prohibit discrimination on the basis of marital status [10] and disability. [11] Thus, in every category but sex-based [180 Wn.2d 491] discrimination, our state WLAD's prohibitions predate their federal counterparts. [12]

¶ 9 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. [13] Federal cases are not binding

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on this court, which is " free to adopt those theories and rationale which best further the purposes and mandates of our state statute." Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988). 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. [14]

[180 Wn.2d 492] c. In Short , the Court of Appeals concluded that Washington's WLAD provides fewer protections against religious discrimination than Title VII does

¶ 10 While Title VII has explicitly required employers to make " reasonable accommodations" for employees' religious practices since 1972, [15] the WLAD lacks such an express requirement. In Hiatt v. Walker Chevrolet Co., this court noted that difference and " specifically disapprove[d]" a Court of Appeals opinion that " assume[d]" the WLAD provided the same protections against religious discrimination that Title VII provides. 120 Wn.2d 57, 64, 837 P.2d 618 (1992).

¶ 11 But the Hiatt court expressly declined to decide whether the WLAD requires employers to reasonably accommodate their employees' religious practices, because doing so was not necessary to resolve the case before it. Id. Hiatt only provided an overview of that " important issue." Id. It noted that the issue had arisen in several other jurisdictions in which state antidiscrimination statutes analogous to the WLAD's prohibited religious discrimination but did not affirmatively require accommodations. Id. at 63. The Hiatt court found these jurisdictions evenly split: in three, courts had found a reasonable-accommodation-for-religion requirement implicit in their state's antidiscrimination statutes but in three others courts had found no such ...


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