After working for two years as a hostess at The Walt Disney Company’s California Adventure’s Storytellers Café in Anaheim, California, Imane Boudlal asked her supervisors for permission to wear a hijab, or headscarf, at work, in compliance with her Islamic religious beliefs. Disney managers declined her request, stating that in her position a hijab would violate Disney’s “look,” and instead offered her a choice of a different job where she would not be in contact with customers or one where she could wear “several large hats of various colors on top of the hijab.” Boudlal refused and alleged that Disney removed her from the Café’s schedule and discharged her from further employment. On August 13, 2012, Boudlal filed suit1 against her former employer, alleging that Disney’s actions constituted discrimination and harassment on the basis of religion or religious creed, national origin, and color in violation of Title VII of the Civil Rights Act of 19642 and the California Fair Employment and Housing Act.3
The matter is set for trial on February 18, 2014.Less than one month after the initial filing of the Boudlal suit, on September 8, 2012, California Governor Jerry Brown signed AB 1964 into law, creating a new class of protections for employees that go beyond those afforded in existing federal and California legislation. Seeking to protect employees’ right to religious dress and grooming practices, it noted that segregating such an individual from the public or from other employees “is not a reasonable accommodation” on the part of an employer.4
LEGAL MODELS FOR ACCOMMODATING RELIGIOUS PRACTICES
Other local and state governments have enacted legislation to give employees more leeway to comply with their religious beliefs while they are at work. Also, several state and federal courts have extended the protection of the relevant laws to situations in which employees claimed they were discriminated against with regard to their religious clothing. However, only California and Oregon have actually taken steps to explicitly protect religious clothing by adding it to the respective statutes.
New York City’s law includes protections for religious observance without explicitly mentioning religious clothing. It requires employers to accommodate the religious observance of employees and applicants for employment unless doing so would cause an “undue hardship.” In this instance, undue hardship has been construed to mean an accommodation requiring significant expense or difficulty, including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system.5
Oregon’s Workplace Religious Freedom Act (ORS 659A.033) more closely resembles the California statute in that it specifies that an employer “violates ORS 659A.030 if: (a) The employer imposes an occupational requirement that restricts the ability of an employee to wear religious clothing in accordance with the employee’s sincerely held religious beliefs, to take time off for a holy day or to take time off to participate in a religious observance or practice. . . .”6
Although California, New York, and Oregon all operate under at-will employment statutes—under which an employer can theoretically fire an employee for good cause or for no cause—these special rules regarding religious expression create certain classes of protected employees and effectively limit the authority of employers to terminate workers in certain circumstances. These and other legislative developments have occurred against a backdrop of increasing litigation that focuses on allegations of religious discrimination. For example, the number of cases resolved by the US Equal Employment Opportunity Commission nearly doubled, from 2,187 in 1999 to 4,219 in 2012.7
California Sets the Pace
California has a history of enacting a variety of legislation with restrictions and other components that exceed those included in related federal laws. For example, California’s pollution-control bill (AB 1493, which passed in 2002) required automakers for the first time to limit heat-trapping carbondioxide emissions that form a thickening blanket in the atmosphere.8 Similarly, the FAIR Education Act (SB 48), enacted in July 2011, made California the first state in the nation to require lessons about gays and lesbians as part of the social studies curriculum in public schools.9
Likewise, although federal law already provides some protection to employees regarding religious expression, such as under the Civil Rights Act of 1964, California’s legislation—including AB 1964 and the California Fair Employment and Housing Act—not only exceed the federal protections, but also have spurred activity in this direction at the federal level. Most recently, the Workplace Religious Freedom Act of 2013 (S.3686), was introduced on December 17, 2012, by former Senator John Kerry (D-MA), but it had not left the US Senate Committee on Health, Education, Labor, & Pensions as of mid-April 2013.10 The proposed act would amend Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination on the basis of religion, specifically in the areas of “garb, grooming, and scheduling.”
At this point, it appears that the proposed federal Workplace Religious Freedom Act may not get out of committee. Despite that, it is apparent that the issue of religious freedom in the workplace is gaining momentum and—based on past experience with gay marriage, civil-union benefits, and other personal-liberty issues—other states and/or locales are likely to follow California’s lead and enact similar legislation.
In California and other jurisdictions that have expanded legislation aimed at accommodating religious observances, employers should consider taking a variety of steps. For example, managers should be sensitive to employees’ requests for such religious accommodations as work schedules or employees’ needs related to wearing certain clothing or adopting certain grooming, like a beard, to comply with their religious beliefs. The kind of response alleged in Boudlal, where the employer supposedly tried to relocate the worker to a back room or otherwise dismissed the request, is no longer acceptable and could expose a company to fines and other penalties.
Managers will have to be creative and consider ways to balance the image of the corporation with the rights of the employee. There is no standard template for this process, and companies will find themselves dealing with this subject on a case-by-case basis. As the statistics from the Equal Employment Opportunity Commission indicate, we are likely to see an increasing number of challenges as more jurisdictions enact similar religious-rights laws and as more employees assert their rights to be accommodated in the workplace.
One trend that is likely to emerge will be the protection given to nontraditional religious beliefs and practices. As laws and, perhaps more importantly, societal attitudes change, the subject of religious beliefs and practices in the workplace will be spotlighted and will gain more attention in our diverse nation.
Companies should ensure that legal counsel and HR specialists are consulted to keep up with changes in state and local laws and to advise all managers of new requirements. Employee handbooks should be kept up to date with all new legal requirements. In turn, managers should sign a declaration that they have received the handbook and acknowledge their awareness of the need to protect the rights of employees concerning religious garb and grooming and other issues as appropriate.
These initiatives should not be limited to existing employees but should also extend to job applicants. During the interview process, for example, managers and others should be careful to avoid acting in a way that might indicate that religion and appearance may be a factor in a hiring decision.
Case law will provide more guidance in this area, but at present, employers should be aware that the legal environment is changing, and they should act carefully when they seek to balance the attire, grooming, and other religious expressions of employees with a company’s image and the anticipated reaction of customers to deviations from that image.