Discrimination
Cherry v. Washington Dept. of Fish & Wildlife (9th Cir., 2026): A Reassignment Process Alone Is No Title VII Accommodation
Updated
In Cherry v. Washington Department of Fish & Wildlife, the Ninth Circuit held that an employer does not satisfy its Title VII duty to reasonably accommodate an employee’s religion, as a matter of law, merely by inviting the employee into a reassignment process that offers only a limited possibility of placement. The court reversed summary judgment on most of the Title VII claims and all of the state-law claims, affirmed on the constitutional and discovery rulings, and remanded. The opinion was filed for publication.
Background
In August 2021, Washington’s governor ordered most state employees to vaccinate against COVID—19 or face termination, with medical and religious exemptions available. Five employees of the Department of Fish and Wildlife sought and received religious exemptions.
The Department concluded that their jobs at times required the physical presence of others and told them it could not accommodate them in their current roles. Each was informed that “[r]eassignment remains a possibility, although opportunities may be limited,” and pointed to a reasonable-accommodation specialist and to unemployment and retirement resources.
The Department’s data showed that, of 122 prior religious-accommodation requests, only 17—about 14 percent—resulted in placement, with no information on pay or whether the new roles resolved the religious conflict. The five employees did not complete the reassignment process, and the Department fired them in late 2021.
The employees sued in the Western District of Washington under Title VII, the Washington Law Against Discrimination, and the federal and state constitutions. The district court granted the Department summary judgment across the board, and the employees appealed.
What the Court Held on the Religious Accommodation
Reviewing summary judgment de novo, the Ninth Circuit explained that Title VII requires an employer to reasonably accommodate an employee’s religion short of undue hardship. Once the employee makes a prima facie showing, the burden shifts to the employer to prove good-faith efforts to accommodate in a way that reasonably preserves the employee’s employment status.
The court held that the district court misapplied that standard. The Department’s obligation was to take the initial step of proposing a reasonable accommodation—an alternative position or arrangement that eliminates the conflict—which would then trigger the employee’s duty to cooperate. Offering only an opportunity to enter a reassignment process, couched in language suggesting success was unlikely, was not such a proposal as a matter of law.
The court faulted the district court for borrowing an “interactive process” standard drawn from the Americans with Disabilities Act. Engaging in a process, it explained, is not the same as proposing an accommodation, and whether this process amounted to one was a fact question for a jury. The scant record—a 14 percent placement rate, no data on pay, and one comparator offered a job at half salary—did not establish a good-faith accommodation.
Under Title VII, an employer does not, as a matter of law, offer a reasonable religious accommodation merely by inviting an employee into a reassignment process that holds out only a limited possibility of placement. The employer must first propose an accommodation that eliminates the conflict and reasonably preserves the employee’s pay and conditions before the employee’s duty to cooperate arises.
What the Court Held on the Remaining Claims
The court affirmed summary judgment for the Department on two employees’ Title VII claims that failed on procedural grounds—one for failing to exhaust with the EEOC and one for suing outside the 90-day window. Because the Title VII and WLAD claims otherwise rise and fall together, it reversed on the other three employees’ Title VII claims and on all five WLAD claims.
On the federal constitutional claims, the court held the employees forfeited their argument that their official-capacity claims escaped sovereign immunity, since their complaint sought damages and an abandoned harassment injunction but not reinstatement. It found no abuse of discretion in the district court’s retention of jurisdiction over the state-law claims and agreed that Washington provides no damages action for privacy under article I, section 7 of its constitution.
Finally, the court affirmed the exclusion of three of the employees’ experts and the protective order barring a broad Rule 30(b)(6) deposition, reviewing each for abuse of discretion and finding none.
What This Means for You
This decision clarifies that, under Title VII in the Ninth Circuit, an employer must propose a reasonable accommodation that eliminates the religious conflict before an employee’s duty to cooperate arises, and that merely offering a reassignment process with a limited chance of placement may not meet that burden as a matter of law. It touches religious-accommodation disputes, including those arising from vaccination mandates.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.