dissenting:
The majority affirms the summary judgment dismissal of Lawson’s Title VII and § 1983 claims, concluding that Lawson was not constructively discharged by the Washington State Patrol (“WSP”). I respectfully dissent. The majority couches Lawson’s struggle with the WSP as a simple voluntary resignation and not a constructive discharge. But this is a case about the fundamental right to religious freedom. It is the story of a conscientious young man who aspires to a career in law enforcement; a young man who also is profoundly religious. His religion does not allow him to swear under oath or salute the flag. He is committed to rendering public service in law enforcement. The only barrier to service in the state patrol is *807the WSP’s failure to accommodate his religion.
I.
Title VII Claim
Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee in employment matters because of the employee’s religion. 42 U.S.C. § 2000e-2(a)(l). For summary judgment purposes, Lawson established a prima facie case of religious discrimination. The majority concedes that Lawson satisfied the first two elements of the prima facie case: (1) Lawson had a bona fide religious belief, the practice of which conflicted with his employment duties as a WSP trooper cadet, and (2) he informed the WSP of his religious beliefs and the conflict. See Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir.1993). Lawson also established the third and final element: he raised a genuine issue of fact as to whether the WSP “threatened him with ... discriminatory treatment ... because of his inability to fulfill the job requirements.” Id. at 1438. The WSP manual, uncontradicted by Lawson’s supervisors, provided Lawson a compelling threat of either discipline or discharge. “The employee need not be penalized with discharge to establish a prima facie case.” Opuku-Boateng v. State of California, 95 F.3d 1461, 1467 n. 9 (9th Cir.1996).
As the majority notes, the test for a constructive discharge is objective — the conditions of employment must have become so intolerable as to cause a reasonable person to quit. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 n. 2 (9th Cir.1998). “[Cjonstructive discharge does not follow automatically from the employer’s conduct as a whole, or from any particular, identifiable fact. It requires in each case an exercise of independent judgment on the part of the employee.” Id. at 1110. Thus, the determination of whether the conditions were so intolerable as to justify a reasonable employee’s decision to resign is typically a factual question left to the trier of fact. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987).
Viewing the evidence in the light most favorable to Lawson, a reasonable trier of fact could find that a reasonable person in Lawson’s position would have felt compelled to resign. After reading his basic training manual, Lawson understood that rule violations resulted in discipline or termination. He quickly recognized that failing to salute the flag and swear faith and allegiance to the United States and the State of Washington violated the rules of the WSP Academy; he found no exceptions listed in the manual. Realizing that his religious beliefs conflicted with the demands of his employment, Lawson turned to Lenny Walker, the Teacher Advisor Counselor whom he was encouraged to contact if he encountered personal problems.
According to Lawson’s declaration, Lawson informed Walker that his religious beliefs conflicted with the requirements that he salute the flag and swear allegiance under oath. He insisted that he did not wish to resign but felt he had no other option if he were required to salute the flag and swear allegiance under oath. Walker questioned him about his religious beliefs. Lawson asked if there were something he could do besides saluting the flag; he suggested that he be allowed to stand respectfully without saluting during the flag ceremony or to take on cleaning duties during the ceremony period. Walker said he did not know of any accommodation that could be made. He then asked if Lawson wanted to resign.
Since Walker had indicated that Lawson would not be excused from saluting or *808swearing allegiance, Lawson reasonably expected that discipline or termination for insubordination would follow if he failed to comply. As Lawson notes in his declaration, termination for insubordination would have jeopardized his opportunities for future employment in law enforcement. Lawson was also concerned that refusing an order to salute the flag would cause a humiliating public spectacle in front of his peers and superiors. Walker did nothing to allay these fears, but rather confirmed Lawson’s initial impression, based on the training manual, that the WSP would require him to compromise his religious beliefs if he wished to continue his employment. Understandably, Lawson informed Walker that he saw no alternative but to resign. See Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140, 144 (5th Cir.1975) (holding that an employee could reasonably infer that she would eventually be discharged for failing to attend company meetings).
The next day Lawson discussed his conflict with other WSP officers. Lawson informed Lieutenant Kenneth J. Irwin that he could not salute the flag or take the oath of office as written due to his religious beliefs. Without discussing any possible accommodations, Lieutenant Irwin presented Lawson with an already prepared resignation letter stating' that he was resigning for personal reasons. Lawson signed the letter believing' that the WSP would make no exceptions to the rules to accommodate his religious beliefs.
As the majority acknowledges, Lawson stated on his exit questionnaire that the conflict with his religious beliefs was his principal reason for leaving the WSP Academy. Lawson even suggested on the questionnaire that the WSP “make allowances for those with religious differences,” yet during the exit interview Sergeant Devo offered no accommodation. After his resignation, Lawson spoke with Captain Porter who informed Lawson that the WSP would offer him no alternatives or accommodations. Captain Porter’s response was consistent with the responses Lawson received from other staff members prior to his resignation.
According to the majority, the WSP’s staff was not required to talk Lawson out of resigning just because he “announc[ed] that he want[ed] to leave.” Majority op. at 805. However, Lawson did not announce that he wanted to leave. Rather he informed his advisors and superiors that he believed he had no choice but to resign because his religious beliefs prevented him from complying with all of the rules in the manual, and he sought accommodation. He specifically stated that resigning was “the last thing he wanted to do.” In response, they offered him no hope that exceptions to the rules could be made or that discipline or discharge could be avoided. Lawson resigned only after his requests for accommodation were refused.
The majority would require Lawson to risk being fired for insubordination, which would ruin his chances of obtaining law enforcement work with more tolerant employers. The majority would have him take such a substantial risk and suffer humiliation in order to put to the test the WSP’s representatives’ statements with regard to its policies. This is not the law. An employee need not bear “the considerable emotional discomfort of waiting to be fired instead of immediately terminating” his employment. See Young, 509 F.2d at 144. The doctrine of constructive discharge applies precisely to this situation— an employee “involuntarily” resigns when he sees no alternative other than the intolerable employment requirements.
The WSP was not obligated to “make extraordinary efforts to talk [Lawson] out of leaving,” Majority op. at 805, but it was *809legally required to maie a reasonable effort to accommodate Lawson’s religious beliefs. Title VII places an affirmative duty on an employer reasonably to accommodate the religious observances and practices of its employees, unless it can establish that accommodation would cause undue hardship to its business. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n. 1, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1574-75 (7th Cir.1997). It is the employer’s burden to attempt an accommodation or to prove undue hardship. Heller, 8 F.3d at 1439-40; E.E.O.C. v. Townley Eng’g & Mfg., Co., 859 F.2d 610, 615 (9th Cir.1988) (stating that the burden of attempting an accommodation lies with the employer, not the employee); Opuku-Boateng, 95 F.3d at 1467; Ilona of Hungary, 108 F.3d at 1575(stating that it is the employer’s burden to prove undue hardship). It is undisputed that the WSP made no efforts to accommodate Lawson.
The WSP also concedes that, if Lawson had requested an accommodation for his religious beliefs, “accommodations could have been made, including allowing Lawson to'affirm’ rather than ‘swear’ and having him stand at attention and not salute during flag detail.” This admission is supported by the affidavit of Lieutenant Irwin who believed that these accommodations were reasonable and could have been made for Lawson. The WSP recognizes the obvious: there is no undue hardship in allowing Lawson to affirm rather than swear. Such an allowance is common in other settings. Trial witnesses may take an oath or simply affirm that they will testify truthfully; they need not swear to tell the truth. Fed.R.Evid. 603 advisory committee’s note (“[Rule 603] is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth.”). More directly on point, lawyers taking the oath of attorney for admission to bars are permitted to declare or affirm, as an alternative to swearing, that they will support the constitution and laws of the nation and the relevant jurisdiction. See, e.g., S.Ct. Application for Admission to Practice (using the words “swear” or “affirm”); Wash. State Bar Admission to Practice R. 5(b) (using the word “declare”); W.D. Wash. Gen. R. 2(e)(3)(using the words “swear” or “affirm”). The oath of office for federal justices and judges also is administered with flexibility to accommodate those with religious objections to swearing; judges may affirm, rather than swear, that they will perform their duties faithfully and impartially. See 28 U.S.C. § 453. Much like law enforcement officials, we rely on judges and lawyers to uphold the law through their work, but we are satisfied that they are serious about doing so when they affirm or declare their commitment as an alternative to swearing.
For summary judgment purposes, Lawson has established a prima facie case of religious discrimination. Contrary to the majority, he has raised a genuine issue of fact as to whether the WSP constructively discharged him. The WSP did not attempt an accommodation and now concedes that accommodation would impose no undue hardship. As a result, the district court erred in granting the WSP’s summary judgment motion as to Lawson’s Title VII claim.
II.
§ 1983 Claims
Relying on Brown v. Polk County, 61 F.3d 650 (8th Cir.1995), the district court concluded that, because there was no Title VII violation, there were no facts to support Lawson’s § 1983 claim. Because I *810would find that Lawson’s Title VII claim of religious discrimination survives summary-judgment, I would also reverse the district court’s dismissal of Lawson’s § 1983 claim. Id. at 654(“[I]f a governmental employer has violated Title VII, it has also violated the guarantees of the first amendment.”).
I would also reverse and remand with respect to Lawson’s claim of an independent § 1983 claim based on the remarks of Captain Porter after Lawson’s resignation. Viewing the evidence in Lawson’s favor, as we must, the WSP violated Lawson’s right to religious freedom under Title VII and the First Amendment by constructively discharging him. Lawson gave the WSP yet another opportunity to right its wrong after his involuntary resignation; hoping to be reinstated, Lawson contacted Captain Porter the day after he left the WSP Academy to inquire further about whether the WSP could accommodate his religious beliefs. Had Captain Porter agreed to Lawson’s request for accommodation and reinstatement, Lawson would have had no need to bring suit to obtain the relief he now seeks.
Instead, Captain Porter refused to offer any accommodation. He insisted that, if Lawson wanted to be a state trooper, he would have to salute the flag and take the oath as written. This response was a continuation of the WSP’s discrimination against Lawson because of his religious beliefs. The WSP had a continuing legal duty to not bar Lawson from the WSP Academy merely because of his religious beliefs. Captain Porter breached that duty.
III.
Conclusion
Lawson’s sincerely held religious beliefs prevent him from saluting the flag or swearing true faith and allegiance to the state and the nation as required by the rules of the WSP Academy. Based on a reading of the WSP’s basic training manual, Lawson reasonably believed that his failure to perform these acts would result in discipline or discharge for insubordination. In hopes of resolving this conflict, Lawson explained his dilemma to his ad-visors and superiors and specifically requested accommodation prior to resigning. His advisors and superiors flatly refused, sending the message that Lawson had only two choices: compromise his religious beliefs or resign. The majority’s attempt to call this a voluntary resignation as a matter of law defies logic and is contrary to the law.
Viewing the evidence in the light most favorable to Lawson, I conclude there are triable issues as to whether the WSP constructively discharged Lawson because of his religion. The district court erred in granting the WSP’s motion for summary judgment as to Lawson’s Title VII claim and in dismissing Lawson’s claims under § 1983. I would reverse and remand for trial.