Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—9th Cir.: Washington state workers revive failure-to-accommodate claims in COVID-19 vaccine case, (Aug 24, 2026)

By Todd Harrison, J.D.

Inviting employees to participate in a “reassignment process” with the caveat that “opportunities may be limited” does not satisfy Title VII’s requirement for proposing a reasonable accommodation.

Reversing in part a district court’s order granting summary judgment against the Title VII and state-law claims asserted by a group of Washington state employees who were fired after refusing to comply with a COVID vaccine mandate, the Ninth Circuit determined that the employer’s initial offer was nothing more than an opportunity for reassignment, couched in language that made success unlikely. Based on this, the court could not say that the employer had made a good faith effort to reasonably accommodate the employees’ religious beliefs as a matter of law. Further, it found the district court’s contrary conclusion applied a mistaken view of the legal standard. Efforts to engage in the interactive process is not the test, good faith efforts to accommodate is the proper application (Cherry v. Washington Department of Fish & Wildlife, No. 25-4763 (9th Cir. Aug. 21, 2026)).

The plaintiffs in this case are five employees who worked for the Washington Department of Fish & Wildlife in 2021. When the state issued a COVID vaccine mandate, the employees sought and were granted religious exemptions.

Reassignment offer. Finding that the employees’ jobs must be sometimes done in the physical presence of others and that vaccination was imperative, the employer informed the employees that it could not accommodate them in their current roles. The letters notifying the employees of this decision contained the following language, “Reassignment remains a possibility, although opportunities may be limited.”

One employee, who was not part of this appeal, but who had participated in the reassignment process, was offered a job at 50 percent of his salary. He left the employer, finding the pay cut to be unfeasible. The employees in this case did not complete the reassignment process, many believing the process was pointless. Ultimately, they were fired for failing to adhere to the vaccine mandate.

Lawsuit. Subsequently, the employees filed this lawsuit, asserting claims under Title VII and the Washington Law Against Discrimination (WLAD), as well as violations of the federal and state constitutions. The employer moved for and was granted summary judgment against all claims.

In dismissing the employees’ Title VII and WLAD claims, the district court assumed they had established a prima facie case for failure to accommodate. Shifting the burden to the employer to show that it had engaged in good faith efforts to kick off the interactive process, the court found the employer had offered a reassignment process but that the employees did not fully participate in it. On these facts, the court concluded that the employees did not state a claim for failure to accommodate under Title VII or the WLAD and, because those claims rose or fell together, the claims were dismissed as a matter of law.

The court further concluded that two of the employees’ Title VII claims failed for procedural reasons and granted summary judgment on the remaining federal and state constitutional claims. It also ruled against the employees on certain matters relating to discovery. This appeal followed.

Accommodation must be proposed. As an initial matter, explained the court, an employer must offer an accommodation—an alternative position or arrangement—that eliminates the asserted conflict between an employee’s religious beliefs and an employee’s current job. The first step in the negotiating process must be the employer’s proposal of an accommodation, which may then be evaluated for its reasonableness.

Here, because the employer’s “initial offer was nothing more than an opportunity for reassignment, couched in language that made success appear unlikely, we cannot say that it has made a good faith effort to reasonably accommodate the Employees’ religion as a matter of law,” said the court.

An employee’s duty to cooperate under Title VII, continued the court, is only triggered once an employer makes an initial offer of a reasonable accommodation. In this instance, because there was an issue of fact as to whether the employer took that initial step, the court could not say that Title VII mandated bilateral cooperation. It was unclear that offering a “reassignment process,” about which little factual information was proffered, was enough to trigger the duty to cooperate.

Legal standard. In reaching its contrary conclusion, the district court had relied on a mistaken view of the legal standard. According to the district court, the employer definitively satisfied its Title VII duties by showing that it “initiated good faith efforts to engage in the interactive process or that [it] could not do so due to undue hardship.” This approach, explained the appellate court, improperly relaxes the actual standard.

Efforts to engage in the interactive process is not the test. Rather, the test is for the employer to prove that it made good faith efforts to accommodate an employee’s religious belief, said the court. The erroneous shift by the district court was subtle but substantial, observed the appellate court. Engaging in a process may be different from proposing an accommodation, and whether the process here constituted a reasonable accommodation was best left to a jury.

Other cases. In response, the employer relied on a few out-of-circuit cases for the proposition that inviting participation in a mere reassignment process was enough to trigger an employee’s duty to cooperate. The court was not persuaded.

Although the cases cited by the employer bore some similarities to the present case in that an employee was offered an opportunity to apply for another position, the cited cases were not analogous, explained the court. In two of the cases, employees were offered concrete options for a transfer. In the third, the employer offered several solutions to the employee’s religious conflict before she was removed. In all three, there were available positions to which the employees chose not to apply.

Here, in contrast, the employees were not offered any available positions. Indeed, the employer told them reassignment opportunities may be limited and provided them with resources on unemployment and retirement. The record did not show that the employees were actively encouraged to apply for open positions.

Regardless, the standard for what constitutes a reasonable accommodation in the Ninth Circuit comes from American Postal Workers Union v. Postmaster Gen., 781 F.2d 772 (9th Cir. 1986), wherein the court held that “[T]he inquiry under Title VII [is] whether the accommodation reasonably preserves the affected employee’s employment status.” Irrespective of the holdings in other circuits, the court here could not say that the employer’s process met this standard as a matter of law.

“Straightforward.” Title VII’s scheme is “straightforward,” explained the court. Employers have a choice. It must either propose a reasonable accommodation, thus triggering an employee’s duty to cooperate, or it must prove that a reasonable accommodation would produce an undue hardship.

On appeal, the employer did not argue an undue hardship, instead asserting that it offered a reasonable accommodation by offering a process that holds out the mere possibility of an accommodation. As explained above, this was not enough, and the court rejected the employer’s “attempt to loosen our reasonable accommodation standard.” Accordingly, the court reversed the grant of summary judgment against three of the employees’ Title VII claims, and for all of the employees’ WLAD claims. It affirmed the grant of summary judgment as to the Title VII claims of two of the employees on procedural grounds.

Remaining claims. As to the remaining federal and state constitutional claims, the court found that those had been properly dismissed. With regard to the discovery-related challenges, the court found no abuse of discretion, affirming the district court’s orders.

The case is No. 25-4763.

Judge: Tung, E.

Attorneys: Nathan J. Arnold (Arnold Jacobowitz & Alvarado) for Paul Cherry, Stephen J. Anderson and Linda Lopez. Kevin J. Kennedy (Pacifica Law Group) for Washington Department of Fish & Wildlife, Kelly Susewind, and Amy Windrope.

Companies: Washington Department of Fish & Wildlife

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