¶43 I believe that the
majority erred by implying a cause of action for religious *507accommodation into the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, in the absence of any legislative or administrative directive. Notwithstanding this error, the majority then misapplies this newly created accommodation cause of action to this case. Even assuming a new cause of action, Kumar fails to allege a requisite adverse employment action and therefore fails to state a prima facie case. I respectfully dissent.
Discussion
¶44 To begin with, the majority’s decision to imply an accommodation cause of action encroaches on the exclusive law making function of the legislature and in so doing disrupts the delicate balance between the branches of government mandated by the Washington Constitution. Neither the legislature nor any administrative agency has spoken on the issue of religious accommodation, and “[i]t is not the role of the judiciary to second-guess the wisdom” of this inaction. Rousso v. State, 170 Wn.2d 70, 75, 239 P.3d 1084 (2010).
¶45 It is important to remember that a cause of action for discrimination in private employment is based in statute. The legislature included religion as one of many grounds on which to establish a discrimination claim under RCW 49.60.180(1) and directed the Human Rights Commission (HRC) to promulgate rules to implement the purposes of the WLAD. RCW 49.60.110, .120. At the same time, the legislature chose to entirely exempt nonprofit religious institutions from prosecution under the WLAD. RCW 49-.60.040(11).35 The existence of this exemption is strong evidence that the legislature has given due consideration to the complexities and implications of legislating in the religious discrimination arena and has chosen not to do so, *508at least for the time being. This decision may reflect caution to regulate in this complex area, a desire to rely on the federal cause of action provided by Title VII of the Civil Rights Act of 1964 (Title VII),36 a need for more time to fully vet the likely impact of creating an accommodation cause of action, or perhaps deference to the HRC through its rule making authority to do this vetting and to decide whether to engage in rule making. Whatever the reason, the legislature’s decision not to act deserves respect.
¶46 The legislature has given authority to the HRC, not this court, to create specific rules to effect its general intent. RCW 49.60.110 (“The commission shall formulate policies to effectuate the purposes of this chapter.”), .120(3) (stating that the HRC has the power “[t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter”). The HRC has exercised this authority, most notably when it promulgated rules requiring accommodation for persons with disabilities.
¶47 Rule making gives the public notice of proposed rules and an opportunity to comment thereon. Judicial law making of the type engaged in by the majority, alternately, gives no notice to parties and provides no opportunity for public input to help vet the consequences. Instead, the majority imposes a new cause of action and applies it to Gate Gourmet without any prior notice of how it might have conformed its behavior to the law. The HRC has so far declined to exercise their legislative grant of power and has neither recognized nor provided rules establishing an accommodation cause of action as it did in the context of disability discrimination. Agencies are experts in their fields and have the time, resources, and knowledge to make the most informed decisions. Additionally, rule making provides an important opportunity to those most affected to offer critical input. This court should not announce new regulations where the HRC has chosen not to.
*509¶48 The majority justifies its decision to bypass the HRC by contending that HRC regulations merely interpret preexisting WLAD law rather than create new law. Majority at 495. The majority cites Holland v. Boeing Co., 90 Wn.2d 384, 583 P.2d 621 (1978), for this proposition, reasoning that in Holland the court found an accommodation action in the disability context “inherent” in the WLAD itself. Majority at 495. Though this court in Holland did recognize the compatibility of a disability accommodation claim with the governing policy of WLAD, this court nowhere said such a disability cause of action was “inherent” and preexisting in the WLAD. Holland, 90 Wn.2d at 388-89. In fact, Holland gave “great weight” to an existing administrative regulation that had created an accommodation cause of action for disability discrimination. Id. at 389 (“The regulation, as the construction of the statute by those whose duty it is to administer its terms, is entitled to be given great weight.”). Moreover, Holland emphasized the unique difficulties faced by handicapped individuals in the workplace and even explicitly distinguished between religious and disability discrimination. Id. at 388 (explaining that, in contrast to other forms of discrimination, “different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities”). Because Congress had also recognized the exceptional challenges faced by disabled employees by providing a cause of action separate from Title VII, this court declined to use the Title VII standard for measuring an unfair employment practice in the employment context. Id. at 390 (“Congress recognized, as do we, that discrimination on the basis of handicap is different in many respects from other types of employment discrimination.”). Though collateral to the court’s decision to imply a cause of action for accommodation of disability, the distinction shows the court’s recognition of disability discrimination and religious discrimination as two different bodies of law. The majority’s reliance on Holland is misplaced.
*510¶49 Instead, this court should heed the teaching of Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 349-52, 172 P.3d 688 (2007), where we declined to imply an accommodation claim for sex discrimination. In Hegwine a woman challenged an employer’s refusal to hire her because she was pregnant, reasoning that the employer was liable for sex discrimination under the WLAD. Id. at 345-48. We noted the legislature’s silence and reasoned that “[i]t is not for this court to impose such an accommodation analysis where the legislature has not seen fit to do so.” Id. at 352. The majority contends that Hegwine is “inapposite” based on a “straightforward application of the HRC’s interpretive guidelines.” Majority at 500 n.26. Though the Hegwine court did use HRC guidelines to determine that pregnancy fell within the realm of sex rather than disability discrimination, the court went on to hold that the failure to accommodate is not actionable as sex discrimination and declined to imply a cause of action. Whether or not the parties focused on this point is irrelevant; this court reached the issue and chose not to imply an accommodation action. Hegwine is our most recent and relevant case addressing whether to imply a failure to accommodate cause of action into the WLAD, and its reasoning is on point here.
¶50 I also disagree with the majority’s analogy to disparate impact claims as support for implying an accommodation cause of action. The majority reasons that because we have implied a disparate impact cause of action into the WLAD, we can imply a similar religious accommodation cause of action. Majority at 498-501. Contrary to the majority’s contention, I do find a “logical reason” to recognize disparate impact but not accommodation claims in the WLAD. Id. at 500. Unlike religious accommodation, disparate impact is not a “cause of action” but is merely an alternate method of proving discrimination under RCW 49.60.180(1). An employee can prove discrimination by showing actual discriminatory intent or by showing a disparate impact in the absence of intent. A typical dis*511crimination claim, whether proved through treatment or impact, promotes access to employment opportunities for all. Accommodation claims require that the employer not just refrain from discrimination in hiring, firing, and promotion decisions but rather reasonably accommodate employees’ demands for alterations in employment conditions when grounded in bona fide religious belief. The majority cites Fahn v. Cowlitz County, 93 Wn.2d 368, 378, 610 P.2d 857 (1980), to support its proposition that disparate impact is its own cause of action, yet Fahn itself refers to disparate impact and disparate treatment as two “forms” of discrimination. Our disparate impact jurisprudence provides no support for implying an accommodation cause of action into the WLAD.
¶51 Furthermore, though the majority is correct that federal Title VII jurisprudence is relevant to the interpretation of the WLAD, the United States Supreme Court’s decision to recognize a religious accommodation cause of action was motivated by a very different history than its recognition of disparate impact methods of proof. In 1972, Congress created a cause of action for religious accommodation by amending the definition of “religion” in Title VII. 42 U.S.C. § 2000e(j). The majority credits the employees’ argument that “Title VII had always imposed a reasonable accommodation duty on the employer and that the 1972 amendment clarified (rather than expanded) that implicit duty ... to reasonably accommodate employees’ religious practices.” Majority at 496. The majority contends that the WLAD must likewise contain an implicit religious accommodation cause of action. But the majority overlooks a crucial fact. Shortly after Congress enacted Title VII, the Equal Employment Opportunity Commission (EEOC) promulgated a rule establishing a religious accommodation cause of action. The EEOC promulgated this rule using their legislatively granted rule making authority to apply the legislative intent of Title VII. So although the Court did recognize an accommodation cause of action before Congress explicitly amended Title VII in 1972, this long stand*512ing recognition was supported by a rule crafted by an agency that Congress had granted specific authority to interpret and apply the statute at issue. As addressed above, the HRC, though cloaked with the same authority as the EEOC, never promulgated a rule establishing a religious accommodation cause of action. Unlike the United States Supreme Court, this court has no support, legislative or administrative, for finding an implicit religious accommodation action in the WLAD.
¶52 Even if I agreed with the majority’s decision to imply an accommodation cause of action, I strongly disagree with its application of such a cause of action to these facts. By creating a new accommodation cause of action without any legislative or administrative guidance, this court’s only choice is to create a cause of action identical to the federal Title VII accommodation claim. The majority holds that our new accommodation claim will track the federal equivalent but misapplies the prima facie elements. Federal law requires the existence of a cognizable employment harm to sustain a valid accommodation claim. To state a prima facie case of failure to accommodate under Title VII, the employee must show (1) the employee holds a bona fide religious belief, (2) the employee informed the employer of that belief, and (3) the employee was disciplined for failing to comply with the conflicting employer policy. 2 Charles A. Sullivan et al., Employment Discrimination: Law and Practice 551 (3d ed. 2002). Indeed, this court in Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 64-65, 837 P.2d 618 (1992), required actual discharge of the employee in order to satisfy the third prong of a prima facie Title VII accommodation claim.
¶53 Kumar fails to allege discharge or discipline. The Gate Gourmet employees may have held bona fide religious beliefs and did notify their employer of those beliefs, but they did not suffer any sort of punishment, reprimand, threat of punishment, or discharge based on these beliefs. The prima facie requirement of an adverse employment *513action serves an important purpose in accommodation claims. Private employers are under no constitutional duty to accommodate the religious beliefs of employees, and the requirement of an adverse employment consequence properly limits the statutory accommodation remedy to the most serious cases of employer discrimination.
¶54 Though some cases suggest that actual discharge is not always required, even those cases recognize that there must at the very least be an “implicit threat” of adverse employment consequences or the existence of constructive discharge. E.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (stating that the prima facie elements may be met by showing an implicit threat of adverse employment action); Equal Emp’t Opportunity Comm’n v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) (addressing constructive discharge in the context of a religious accommodation claim). In a footnote, the majority contends that an “employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Majority at 502 n.30. Even following the cases the majority cites, the facts here do not support an adequate prima facie case.
¶55 For example in Berry, 447 F.3d at 655, cited by the majority, the court held that the third prong of the accommodation cause of action was satisfied because “ ‘the employer, at least implicitly, threatened some adverse action by formally instructing [the employee] not to pray or proselytize to clients.’ ” Kumar does not come close to showing an “implicit threat” because the petitioners were never reprimanded, threatened, or “instructed.” There is no evidence that the Kumar employees would have faced any adverse employment action.
¶56 The majority also quotes Townley for the proposition that “[a]n employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.” 859 F.2d at 614 n.5; majority at 502 n.30. Though an accurate quotation, the *514majority overlooks the fact that Townley was a constructive discharge case where the employee was so offended by the employer’s requirement to attend weekly religious services that he felt compelled to quit his job. Townley, 859 F.2d at 612. The Gate Gourmet employees, in contrast, were not moved to quit. Townley does not support the majority’s position.
¶57 In short, I disagree with the majority’s decision to create out of whole cloth a new cause of action for failure to accommodate without any suggestion that the legislature or the HRC intended to provide such a claim. Moreover, Title VII requires some form of actual or threatened adverse employment action to meet the third prong of a prima facie accommodation claim. The majority is wrong to suggest otherwise. Under any reasonable definition of a prima facie case, Kumar failed to allege the requisite employment harm. Thus, even if this court implies an accommodation cause of action into the WLAD, Kumar cannot state a prima facie case.
¶58 I respectfully dissent.
C. Johnson and Owens, JJ., and J.M. Johnson, J. Pro Tem., concur with Madsen, C.J.We recently rejected a facial challenge to the constitutionality of this exemption in Ockletree v. Franciscan Health System, 179 Wn.2d 769, 317 P.3d 1009 (2014).
Pub. L. 88-352, 78 Stat. 241 (1964); 42 U.S.C. § 2000e-2(a).