Lawson

dissenting from the denial of rehearing en banc:

The panel majority in this case proceeds on the premise that an employee never has a cause of action for religious discrimination under Title VII, 42 U.S.C. § 2000e et seq., for failure to accommodate religious observance, unless the employee first refuses because of his or her religious beliefs to comply with an applicable rule and is thereafter fired or disciplined or specifically threatened with firing or discipline. This holding is squarely contrary to Supreme Court precedent, to the EEOC’s consistent interpretation of the statute, and to good sense. By failing to take the case en banc, this court has undermined the protections against religious discrimination provided in Title VII of the Civil Rights Act of 1964.

I. The Failure to Accommodate is Itself a Title VII Violation

A. U.S.C. § 2000e(j)

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Unlike the later-enacted Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et…

*499 ORDER

The Order filed on January 3, 2003, denying the petition for rehearing en banc, is hereby amended to include Judge Ber-zon’s attached dissent from the denial of rehearing en banc. This order and Judge Berzon’s dissent shall be published.

Judge Tallman has voted to deny the petition for rehearing en banc and Judge Reavley has so recommended. Judge B. Fletcher has recommended granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing en banc is therefore denied.

The mandate shall issue in due course.