Opinion
H051386
10-30-2024
CHRISTOPHER BINGHAM et al., Plaintiffs and Appellants, v. CITY OF SAN JOSE, Defendant and Respondent.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 22CV399254)
BROMBERG, J.
Plaintiffs Christopher Bingham, Anthony Dixon, Aleksandr Girzhu, Luke Goodrich, and Brendan Kasten are San Jose firefighters. In December 2021, Santa Clara County (County) issued a public health order requiring firefighters and other personnel working in "Higher-Risk Settings" to be fully vaccinated against COVID-19. Plaintiffs objected to the vaccine on religious grounds, and defendant City of San Jose (City) accommodated plaintiffs by exempting them from the vaccine requirement and placing them on involuntary unpaid leave.
Plaintiffs sued, claiming failure to reasonably accommodate their religious beliefs under both Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.) and the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court sustained demurrers to the original complaint and to an amended complaint.
Plaintiffs now appeal, contending that they have pleaded valid claims under both Title VII and FEHA. As explained below, we agree that the allegations are sufficient to state valid claims at the pleadings stage. We therefore reverse the judgment and remand for further proceedings.
I. Background
A. Plaintiffs' Vaccination Exemption
In 2021 and 2022, plaintiffs worked for the San Jose Fire Department. In August and September of 2021, they each sought religious exemptions from the City's then-applicable COVID-19 vaccination requirements. The City granted each of the exemption requests.
B. The County Vaccination Order
On December 28, 2021, in response to emergence of a highly transmissible COVID-19 variant, the County Public Health Department issued an order imposing a new, more stringent vaccination requirement. The order required all individuals working in "Higher Risk Settings" to be fully vaccinated against COVID-19, including boosters. The order defined "Higher-Risk Settings" to include working in proximity to people "at higher risk of severe illness, hospitalization, or death from COVID" and expressly included in these settings "medical first responders." Under the order, firefighters are deemed to work in a Higher-Risk Setting.
The County vaccination order gave unvaccinated individuals until January 24, 2022 to obtain their first dose of a vaccine, and it barred unvaccinated personnel from working in Higher-Risk Settings after February 1, 2022. The order also allowed businesses and government entities to grant requests for medical or religious exemptions from the vaccination requirement and "to offer an appropriate reasonable accommodation." However, the order expressly forbade accommodations allowing unvaccinated individuals to work in Higher-Risk Settings: "[P]ersonnel who are not compliant with the vaccination requirements of this Order cannot work in Higher-Risk Settings, as of the dates provided . . . regardless of whether they have a pending exemption request or an approved exemption."
The County vaccination order also expressly provided for enforcement. It stated that violation of any of its provisions was "an imminent threat and menace to public health" and "punishable by fine, imprisonment, or both." In addition, the order "request[ed] that the Sheriff, all chiefs of police in the County, and all enforcement officers ensure compliance with and enforce this Order."
The order became effective on December 29, 2021 and was to continue until rescinded, superseded, or amended by the County Health Officer.
C. Plaintiffs' Involuntary Unpaid Leave
The City Fire Department notified plaintiffs that, without vaccinations, they would not be permitted to continue working in Higher-Risk Settings after February 1, 2022 and, as an accommodation for their religious beliefs, would be placed on unpaid leave. Plaintiffs did not obtain vaccinations and, effective February 2, 2022 were placed on unpaid leave.
Some plaintiffs also were informed that this unpaid leave would continue through April 2, 2022 and might be extended beyond that point. Two plaintiffs were informed that the City was then unable to provide modified duty but would continue to engage in the interactive process if other accommodation options became available.
On March 8, 2022, after the County amended the vaccination order to permit unvaccinated personnel with approved medical or religious exemptions to return to work in Higher-Risk Settings, plaintiffs returned to work. Consequently, plaintiffs were on unpaid leave from February 2, 2022 through March 7, 2022, approximately five weeks.
On appeal the City asked this court to take judicial notice of 1) Santa Clara County's Ordinance No. NS-9.291, and 2) the March 7, 2022 Updated and Amended Order of the Health Office of the County of Santa Clara Requiring Up-to-Date COVID-19 Vaccinations of Personnel in Higher Risk Settings. The City's request is granted.
D. The Proceedings Below
Plaintiffs filed administrative complaints with the California Department of Fair Employment and Housing and received notices of their rights to sue. Plaintiffs then sued the City for failure to accommodate under both Title VII and FEHA. In December 2022, the trial court sustained a demurrer with leave to amend.
Plaintiffs filed an amended complaint raising the same claims. The amended complaint added allegations that, as result of being placed on unpaid leave for five weeks they had suffered financial harm, not accrued time towards their pensions, and lost seniority rights. Plaintiffs also alleged that employers were permitted to seek a waiver of the County vaccination order if they had a critical staffing shortage and that the City Fire Department had such a shortage, which was requiring many firefighters to work over 96 hours a week. Plaintiffs further alleged that they could have worked on 911 calls, and that the public and their coworkers could have been adequately protected from COVID-19 through masking, testing, and other safety protocols.
The City once again demurred, and the trial court sustained the demurrer, this time without leave to amend. Citing regulations for disability discrimination, the trial court ruled that unpaid leave was a reasonable accommodation. The court reasoned that, in light of their refusal to comply with the County vaccination order, "Plaintiffs were unable to perform an essential job function and were, effectively, voluntarily disabled." The trial court therefore concluded that "there was no other accommodation available to them than a leave of absence."
The trial court rejected many of the amended complaint's allegations concerning the reasonableness of the City's accommodation. For example, it rejected the allegations that safety protocols adequately protected coworkers and the public as "conclusions and medical opinions" that "do not need to be accepted as 'true' on demurrer." The court also rejected the allegation that the City could have sought a waiver of the County vaccination order on the ground that "[t]here are no factual allegations that the City experienced a 'critical staffing shortage ....'" The court asserted as well that the amended complaint did not allege that there was a "critical staffing shortage."
Finally, the trial court found that unpaid leave was not an adverse employment action on the ground the amended complaint had not alleged facts sufficient to show any substantial adverse change.
On August 18, 2023, the trial court entered final judgment, and on August 30, 2023 plaintiffs filed a timely notice of appeal.
II. Discussion
A. Title VII
Plaintiffs argue that the trial court erred in sustaining the City's demurrers to their Title VII claim. We review orders sustaining demurrers de novo. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In so doing, "[w]e accept as true all material facts properly pleaded in the complaint, but do not assume the truth of contentions, deductions, or conclusions of fact and law." (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1103 (Brown).) We conclude that plaintiffs have stated valid failure-to-accommodate claims under Title VII.
1. The Duty to Accommodate Religious Beliefs and Practices
Title VII prohibits an employer from discriminating against an employee "because of such individual's . . . religion." (42 U.S.C. § 2000e-2(a)(1).) In addition, Title VII defines" 'religion'" to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates he is unable to reasonably accommodate to an employee's . . . religious observance without undue hardship on the conduct of the employer's business." (42 U.S.C. § 2000e(j).) Accordingly, under Title VII, a claim for religious discrimination may be asserted not only for disparate treatment-that is, treating employees adversely because of their religious briefs and practices-but also for failing to accommodate an employee's religious beliefs and practices in applying religiously neutral practices. (See, e.g., Peterson v. Hewlett-Packard Co. (9th Cir. 2004) 358 F.3d 599, 603 (Peterson).) In particular, Title VII requires employers "to accommodate [an employee's] religious beliefs unless doing so would impose an undue hardship." (Bolden-Hardge v. Office of California State Controller (9th Cir. 2023) 63 F.4th 1215, 1222 (Bolden-Hardge).)
As the Ninth Circuit recently observed, Title VII failure-to-accommodate claims are analyzed "under a burden-shifting framework." (Bolden-Hardge, supra, 63 F.4th at p. 1222.) First, the employee must establish "a prima facie case of failure to accommodate religion." (Ibid.; see Peterson, supra, 358 F.3d at p. 606.) Second, if a prima facie case is established, the burden shifts to the employer to show that it initiated good faith efforts to accommodate the employee's religious practices or that the employer could not provide a reasonable accommodation without undue hardship. (Peterson, supra, at p. 606.) Independent of the burden-shifting framework, a failure to accommodate claim fails if an employer has reasonably accommodated religious beliefs or practices. (See Ansonia Bd. of Educ. v. Philbrook (1986) 479 U.S. 60, 68 (Ansonia) ["[W]here the employer has already accommodated the employee's religious needs, the statutory inquiry is at an end."].)
We analyze these issues-the prima facie case, reasonable accommodation, and undue hardship-below.
2. The Prima Facie Case
To plead a prima facie case of failure to accommodate under Title VII, an employee must allege three things: "(1) he had a bona fide religious belief, the practice of which conflicts with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement." (Peterson, supra, 358 F.3d at p. 606.) For purposes of this appeal, the City does not dispute that the first two parts of this test have been satisfied. We therefore focus on the third part of the test.
Plaintiffs alleged that the City took adverse employment actions against them because of their inability to fulfill a job requirement. In particular, because the County vaccination order mandated that individuals working in Higher-Risk Settings be vaccinated, the City allegedly prohibited plaintiffs from working as firefighters after February 1, 2022 and placed them on unpaid leave for five weeks. In addition to depriving plaintiffs of their livelihood, this unpaid leave allegedly harmed plaintiffs because they "had to use all paid vacation time and were forced to use lost time, which means they did not accrue time towards their pensions and suffered a loss of seniority," which in turn caused them to lose their "place in line to choose, e.g., vacation time and places to work."
Plaintiffs have sufficiently alleged that the extended and involuntary unpaid leave imposed on them was an adverse employment action. For purposes of Title VII, courts "define 'adverse employment action' broadly" to include, among other things, actions of an employer that "negatively affect its employee's compensation." (Fonseca v. Sysco Food Serv. of Arizona, Inc. (9th Cir. 2004) 374 F.3d 840, 847; see also Muldrow v. City of St. Louis (2024) 601 U.S. 346, 355 [under Title VII adverse employment actions need not be" 'significant,'" "serious," or "substantial"].) Accordingly, federal courts repeatedly have recognized that extended or indefinite involuntary unpaid leave is an adverse employment action. (See Dawson v. Akal Security, Inc. (9th Cir. 2016) 660 Fed.Appx. 504, 506 (Dawson) [holding involuntary unpaid leave for almost two months an adverse action under the Americans with Disabilities Act]; Arizanovska v. Wal-Mart Stores, Inc. (7th Cir. 2012) 682 F.3d 698, 704 ["Being forced to take an unpaid leave of absence certainly falls into the . . . category of material adverse employment actions."]; Gallagher v. Hawaii Symphony Orchestra (D.Haw. Mar. 27, 2024) 2024 WL 1331799, at *9 ["unpaid leave can nevertheless constitute an adverse employment action" where "the unpaid leave was both involuntary and indefinite"]; Cox v. Northwest Regional Education Serv. Dist. (D.Or. Feb. 22, 2024) 2024 WL 777598, at *7-*8 [holding indefinite unpaid leave an adverse employment action]; Sambrano v. United Airlines, Inc. (N.D.Tex. 2023) 707 F.Supp.3d 652, 665 ["employees who were actually placed on indefinite unpaid leave clearly suffered more than a de minimis adverse employment action"]; Zimmerman v. PeaceHealth (W.D.Wash. 2023) 701 F.Supp.3d 1099, 1110 (Zimmerman) ["Plaintiffs have plausibly alleged that indefinite unpaid leave was an adverse employment action ...."]; Magee v. Trader Joe's Company (D.Or. Sept. 1, 2020) 2020 WL 9550008, at *11 (Magee) ["placing an employee on unpaid leave involuntarily may be considered an adverse action"].)
The City contends that the involuntary unpaid leave alleged by plaintiffs was not an adverse employment action because the City informed plaintiffs that they were placed on leave for a finite period with an "expected end-point." In fact, documents attached to the amended complaint reflect that two plaintiffs were not given any expected end point. In addition, according to these documents, the other three plaintiffs were given an expected end-point, but also were told that "[a]n extension of your leave will be processed beyond April 2, 2022, if necessary." In any event, courts have found involuntary unpaid leave an adverse employment action where, as here, it extended for several weeks or months. (Dawson, supra, 660 Fed.Appx. at p. 506 [holding unpaid leave for "almost two months" an adverse employment action]; Magee, supra, 2020 WL 9550008, at *11 [finding adverse employment action when plaintiff was placed on unpaid leave for three weeks].) Moreover, the City has failed to offer any persuasive reason why involuntary unpaid leave exceeding a month should not be considered an adverse employment action, much less to cite any authority taking such a position.
Accordingly, we conclude that the amended complaint sufficiently pleaded a prima facie case under Title VII for failure to accommodate and therefore turn to the allegations concerning reasonable accommodation and undue hardship.
3. Reasonable Accommodation
Title VII requires employers "to accommodate the religious beliefs of an employee in a manner which will reasonably preserve the employee's employment status, i.e., compensation, terms, conditions, or privileges of employment." (Am. Postal Workers Union, S.F. Local v. Postmaster Gen. (9th Cir. 1986) 781 F.2d 772, 776 (Am. Postal Workers Union); see also Ansonia, supra, 479 U.S. at pp. 70-71 [an accommodation is reasonable if it "eliminates the conflict between employment requirements and religious practices" and "has no direct effect upon either employment opportunities or job status"].) Consequently, "[w]here an employer proposes an accommodation which effectively eliminates the religious conflict faced by a particular employee . . . the inquiry under Title VII reduces to whether the accommodation reasonably preserves the affected employee's employment status." (Am. Postal Workers Union, supra, at pp. 776-777; see also Ansonia, supra, 479 U.S. at p. 68 ["where the employer has . . . reasonably accommodated the employee's religious needs, the statutory inquiry is at an end."].)
Plaintiffs have sufficiently pleaded that the extended and involuntary unpaid leave allegedly imposed on them was not a reasonable accommodation. By not requiring plaintiffs to take the COVID-19 vaccines mandated by the County vaccination order, the City eliminated the conflict between the order and plaintiffs' religious beliefs concerning the COVID-19 vaccines. However, the alleged unpaid leave did not reasonably preserve plaintiffs' employment status. (Cf. Hudson v. Western Airlines, Inc. (9th Cir. 1988) 851 F.2d 261, 266 [noting various reasonable accommodations such as permitting employees to trade shifts, flexible scheduling allowing employees to choose days to work, and allowing lateral transfers or changes in job assignments].) To the contrary, the City allegedly barred plaintiffs from the workplace and placed them on unpaid leave, depriving them of both their work and their pay. In essence, plaintiffs have alleged that the City laid them off for the duration of the County vaccination order. As the alleged involuntary unpaid leave fundamentally changed plaintiffs' employment status, we conclude that plaintiffs have adequately alleged that the involuntary leave was not a reasonable accommodation. (See Mois v. Wynn Las Vegas LLC (9th Cir. 2017) 715 Fed.Appx. 600, 601 [concluding that "placing Mois on unpaid leave was not a reasonable accommodation"]; Zimmerman, supra, 701 F.Supp.3d at p. 1110 [finding plausible allegations that "indefinite unpaid leave was . . . not a reasonable accommodation"].)
The Western District of Washington reached this conclusion in a closely analogous case. In Zimmerman, supra, 701 F.Supp.3d 1099, a health care provider required all employees providing patient care to be fully vaccinated against COVID-19. (Id. at p. 1105.) When a group of employees expressed religious objections to the vaccinations, as an accommodation the health care provider exempted the employees from the vaccination requirement but placed them on indefinite unpaid leave. (Id. at p. 1107.) The employees sued for failure to accommodate under Title VII, and the health care provider moved to dismiss, arguing that unpaid leave was a reasonable accommodation. (Id. at p. 1109.) The district court denied the motion. In addition to concluding that indefinite unpaid leave was an adverse employment action (id. at pp. 1109-1110), the court ruled that the plaintiffs in Zimmerman had "plausibly alleged that indefinite unpaid leave was . . . not a reasonable accommodation" by pleading (much like plaintiffs here) that the health care provider could have transferred them to other positions or allowed them to use additional protective equipment or measures. (Id. at p. 1110.)
Citing the United States Supreme Court's decision in Ansonia, supra, 479 U.S. 60, the City argued in the trial court that unpaid leave is generally a reasonable accommodation for religious practices that conflict with job requirements. Ansonia, however, involved a very different conflict. In that case, a collective bargaining agreement afforded teachers only three days of paid leave for religious holidays, but one teacher's religious beliefs required him to refrain from secular employment six school days a year. (Id. at pp. 62-64.) The United States Supreme Court observed that "requiring respondent to take unpaid leave for holy day observance that exceeded the amount allowed by the collective bargaining would generally be a reasonable one." (Id. at p. 70.) Such leave, the Court explained, eliminated the conflict between the school's employment requirement and the plaintiff's religious practices while requiring the employee "only to give up compensation for a day that he did not in fact work," which had" 'no direct effect upon either employment opportunities or job status.'" (Id. at pp. 70-71.)
This case is far different. The unpaid leave alleged by plaintiffs was involuntary and extended. It allegedly barred plaintiffs from their workplace when they want to work, and it allegedly deprived them of pay (as well as pension and seniority rights) for weeks, not just days. As the Ninth Circuit has observed, "[t]he fact that unpaid leave may be a reasonable accommodation when it is requested 'does not mean that it cannot also be an adverse action, particularly where the employee is placed on unpaid leave involuntarily.' [Citation.]" (Dawson, supra, 660 Fed.Appx. at p. 506; see also Zimmerman, supra, 701 F.Supp.3d at p. 1110.)
Because the amended complaint plausibly alleged the extended and involuntary unpaid leave imposed on plaintiffs did not reasonably preserve their employment status, we conclude that, for purposes of the pleadings, the leave was not a reasonable accommodation.
Citing the regulations governing disability discrimination (Cal. Code Regs., tit. 2, § 11068, subd. (c)), the trial court ruled that unpaid leave is a reasonable accommodation because plaintiffs were either unable or unqualified to perform an essential job function due to their religious objections. However, as the City recognizes, the reasonable accommodation regulations for disability discrimination are different from the regulations governing religious discrimination. In fact, the religious discrimination regulations make no mention of performing essential functions. (See Cal. Code Regs., tit. 2, § 11062.) Moreover, plaintiffs claiming religious discrimination are not required to show that they can perform essential job functions despite their beliefs. To the contrary, one of the elements of a prima facie case of religious discrimination under FEHA is that the employee's religious belief "conflicted with an employment requirement." (California Fair Employment & Housing Comm. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (Gemini Aluminum Corp.).) In the religion context, ability to perform job functions is instead addressed by the employer's undue hardship defense. (See, e.g., Groff v. DeJoy (2023) 600 U.S. 447, 456 (Groff) [inability to work on Sundays]; Lowe v. Mills (1st Cir. 2023) 68 F.4th 706, 719-722 (Lowe) [inability to comply with vaccination requirement]; Zimmerman, supra, 701 F.Supp.3d at pp. 11101116 [same].)
4. Undue Hardship
We now turn to the question whether, at the pleadings stage, undue hardship excuses the City's failure to offer a reasonable accommodation. As undue hardship is an affirmative defense (Bolden-Hardge, supra, 63 F.4th at p. 1224), a demurrer may be sustained based on undue hardship only if" 'the face of the complaint discloses that the action is necessarily barred'" on that ground. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726.) The City has not satisfied this demanding standard. On the face of the complaint, at least some of plaintiffs' proposed accommodations would not impose an undue hardship, and therefore, at the pleading stage at least, plaintiffs' Title VII claims survive the City's undue hardship defense.
As noted above, Title VII defines religion to include all aspects of religious belief and practice "unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." (42 U.S.C. § 2000e(j).) Undue hardship occurs "when a burden is substantial in the context of an employer's business." (Groff, supra, 600 U.S. at p. 468.) This is a "fact-specific inquiry," which takes into account "all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, 'size and operating cost of [an] employer.'" (Id. at pp. 468, 470-471.)
Although it is well-established that an accommodation requiring an employer to violate a state or federal law imposes undue hardship (see, e.g., D'Cunha v. Northwell Health Systems (2d Cir. Nov. 17, 2023) 2023 WL 7986441, at *3; Lowe, supra, 68 F.4th at pp. 719-722; Sutton v. Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d 826, 830; United States v. Board of Education for School District of Philadelphia (3d. Cir. 1990) 911 F.2d 882, 891), plaintiffs allege that the City could have accommodated their religious beliefs without violating the County vaccination order. In particular, the amended complaint alleges that the City could have sought a waiver of the County vaccination order based on a critical staffing shortage or transferred them to jobs not in "Higher-Risk Settings" requiring vaccination. On its face, the amended complaint does not establish that either of these proposed accommodations would pose an undue burden. To the contrary, the amended complaint alleges that the City Fire Department was facing a severe staffing shortage and that a County public health order allowed employers facing such shortages to seek a waiver of the vaccination requirement. Additionally, plaintiffs alleged that they could have been transferred to positions answering 911 calls, which presumably is not a Higher-Risk Setting and therefore would not have required vaccination under the County vaccination order. If these allegations are accepted as true, as they must be at the demurrer stage (Brown, supra, 60 Cal.App.5th at p. 1103), they show that the City had available accommodations that would have allowed plaintiffs to work without a vaccination. Thus, far from establishing the City's undue hardship defense, the face of the complaint shows that the City could have reasonably accommodated plaintiffs' beliefs without undue hardship.
In response, the City contends that on its face the amended complaint shows that the City did not qualify for a waiver. The City points out that, according to the amended complaint, one requirement for a waiver is that the employer is unable to maintain operations due to inadequate staffing, and the City argues that the complaint establishes that it has been able to maintain its firefighting operations. The amended complaint, however, alleges that many firefighters have been forced to work over 96 hours a week to deal with staffing shortages. As it may be reasonably inferred that firefighters cannot work 96 hours a week for long, this allegation is sufficient to show that the City would have been unable to maintain its firefighting operations due to inadequate staffing.
The City also contends that documents attached to the amended complaint establish that no transfers were available. The documents in question, however, contain the determinations that the plaintiffs challenge. In one of the documents, an email, the City informed one of the plaintiffs that he was being placed on unpaid leave based on the County vaccination order and "the Department's inability to provide modified duty that is not in Higher Risk Settings as a form of reasonable accommodation at this time." In the other document, the City informed another plaintiff that he was being placed on unpaid leave in part because "there is no modified duty available." But the amended complaint relies on these communications only to establish the accommodation offered (unpaid leave). Consequently, while the communications attached to the amendment complaint establish that in offering this accommodation the City stated that there was no modified duty available, plaintiffs did not adopt those statements by attaching the communications containing them to the complaint. (See Washer v. Bank of America Nat. Trust &Savings Assn. (1943) 21 Cal.2d 822, 830 (Washer), overruled on another point in MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 551 ["unless the action or defense is founded upon the exhibit, the language of the complaint . . . determines the extent to which the document has been made a part of the pleading"].) Instead, it remains to be proven whether plaintiffs' religious objections to vaccination could have been accommodated through transfer to jobs not in Higher-Risk Settings. (See, e.g., Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233, 241 ["lateral transfers or changes of job assignments constitutes a reasonable accommodation"].)
Frantz v. Blackwell (1987) 189 Cal.App.3d 91 (Frantz), which the City cited in supplemental briefing after oral argument, does not suggest a different rule. Relying on the Witkin treatise, Frantz concluded that recitals in a letter attached to the complaint were "evidentiary facts . . . which can be considered on demurrer." (Id. at p. 94., citing 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, §§ 387, 411, 412, at pp. 436, 458-459.) However, in one of the sections Frantz cited, the Witkin treatise followed Washer and recognized that, where a cause of action is not based on an agency decision, merely attaching the decision to a complaint "did not adopt the decision's recitals of fact." (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 387, at p. 436.) Accordingly, we do not interpret Frantz as departing from Washer but instead as applying it to the particular complaint in that case.
Accordingly, we conclude that the amended complaint alleges valid Title VII failure-to-accommodate claims and on its face does not establish an undue hardship defense against those claims.
Plaintiffs also argue that the County vaccination order cannot "supersede" Title VII (or FEHA). This argument is based on Title VII's express preemption provision (42 U.S.C. § 2000e(b)), which invalidates state laws inconsistent with the statute. This argument fails because plaintiffs do not explain how an order that requires vaccination without regard to religious belief or affiliation and that expressly allows for religious exemptions is inconsistent with Title VII. (See, e.g., Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 701, fn. 15 [appellants' "failure to adequately develop their point with meaningful legal analysis forfeits the argument"].)
B. FEHA
Plaintiffs and the City both argue that under FEHA failure-to-accommodate claims are interpreted similarly, if not identically, to such claims under Title VII. With respect to this case, we agree. (But see Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39, 67 (Friedman) [noting difference between Title VII regulations defining" 'religion'" and FEHA regulations defining" 'religious creed' "].) As explained below, just as the amended complaint alleged valid claims under Title VII, it alleged valid claims under FEHA.
Much like Title VII, FEHA prohibits employers from discriminating against employees based on religion. (Gov. Code, § 12940, subd. (a) [making it unlawful to discriminate against an employee in the terms, conditions, or privileges of employment "because of . . . religious creed"].) In addition, FEHA expressly prohibits employers from discriminating "because of a conflict between the person's religious belief or observance and any employment requirement" unless the employer shows it has explored reasonable alternative ways of accommodating "but is unable to reasonably accommodate the religious belief or observance without undue hardship . . . on the conduct of the business of the employer." (Id., § 12940, subd. (l)(1).)
The amended complaint's allegations satisfy FEHA's requirements for a prima facie case of failure to accommodate, which are similar to those under Title VII. The prima facie case under FEHA has three elements: "[1] the employee sincerely held a religious belief; [2] the employer was aware of that belief; and [3] the belief conflicted with an employment requirement." (Gemini Aluminum Corp., supra, 122 Cal.App.4th at p. 1011; Friedman, supra, 102 Cal.App.4th at p. 45.) The allegations in the amended complaint satisfy these elements. As noted above, the City does not dispute that the amended complaint satisfies the first two elements, and the third element is satisfied because the amended complaint alleges that plaintiffs' religious beliefs conflicted with the County vaccination order's mandate that individuals working in "Higher-Risk Settings" be fully vaccinated.
As with Title VII, once a plaintiff makes a prima facie showing of a FEHA failure-to-accommodate religion case, the burden shifts to the employer to establish that "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 (Soldinger).) Plaintiffs' allegations show that the extended involuntary unpaid leave imposed on them was not a reasonable accommodation.
Under FEHA, a reasonable accommodation "eliminates the conflict between the religious practice and the job requirement," such as by job restructuring or job reassignment. (Cal. Code Regs., tit. 2, § 11062, subd. (a).) Although neither the regulation nor any case law explains how to determine whether an accommodation that eliminates the conflict between religious practice and a job requirement is reasonable, the leading California case on reasonable accommodation leans heavily on Title VII cases. (Soldinger, supra, 51 Cal.App.4th at pp. 370-371 [relying on Ansonia and Trans World Airlines, Inc. (1977) 432 U.S. 63]; see also id. at p. 370 "[The reasonableness of the employer's efforts to accommodate is determined on a case by case basis."].) Moreover, none of the examples of reasonable accommodations in the regulation construing FEHA-"job restructuring, job reassignment, modification of work practices, or allowing time off" (Cal. Code Regs., tit. 2, § 11062, subd. (a)) and adjusting interview and examination times, modifying dress and grooming standards, and not paying union dues (id., § 11062, subd. (c))-involve involuntary unpaid leave or other significant change in employment status. Accordingly, we conclude that under FEHA, as under Title VII, a reasonable accommodation must preserve an employees' employment status, and because the extended and involuntary unpaid leave alleged imposed on plaintiffs did not do this, the amended complaint adequately alleges that plaintiffs' unpaid leave was not a reasonable accommodation.
Finally, we conclude that undue hardship under FEHA is not established on the face of the amended complaint. As under Title VII, under FEHA undue hardship is an affirmative defense. (See CACI No. 2561.) Because, as shown above, the amended complaint adequately alleges that the City could have obtained a waiver or transferred plaintiffs to another job not in a Higher-Risk Setting, the undue hardship defense is not established at the pleadings stage.
Accordingly, we conclude that the amended complaint alleges a valid failure-to-accommodate claim under FEHA.
III. Disposition
The judgment is reversed, and this matter is remanded to the trial court with directions to vacate the order sustaining the demurrer without leave to amend. Plaintiffs are entitled to their reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: LIE, ACTING P. J., WILSON, J