Both federal and California law have long forbidden religious discrimination in employment, while also requiring employers to grant reasonable accommodations for religious observances. A common accommodation is to modify a policy to enable an employee to engage in a particular religious observance (such as not working on the Sabbath). California has now set itself apart with the recent amendments to the FEHA.
Federal Law: Since 1977 the federal law has recognized that employers need not provide accommodations that would impose more than a minimal burden on the employer’s operations. And federal cases have also allowed employers, in enforcing personal-appearance codes, to accommodate certain grooming or dress practices by having the employee work in a designated area of the workplace.
California Peculiarities: The FEHA amendments essentially codify cases holding that employers must reasonably accommodate religious dress and grooming practices. But the Legislature has now made California quite distinct from federal law in two fundamental respects:
- It is now clear, if it was not before, that California law, unlike federal law, requires employers to show a truly significant “undue hardship” to avoid providing a reasonable accommodation.
- California now categorically disallows, as a form reasonable accommodation, the practice of having the employee work in a designated part of the workplace to avoid, for example, contact with customers.
Workplace Solutions: From a practical perspective, the new FEHA amendments will cause employers to review their policies and procedures relating to dress and grooming codes to ensure that they comply with California’s new, stricter provisions. The employer’s use of the interactive process in addressing disability accommodations could serve as a good model in addressing issues of religious accommodations, especially now that the undue hardship analysis in both kinds of cases will be essentially the same.
Another Perspective: Our guest author, Alan J. Reinach, Esq., Executive Director of the Church State Council, was instrumental in lobbying for these new amendments to FEHA. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. While his views do not necessarily reflect those of the authors or Seyfarth Shaw LLP, Mr. Reinach offers a thoughtful perspective worthy of careful consideration.
California Dresses Up Religious Accommodation Law
By: Alan J. Reinach, Esq.
On September 8, 2011, Governor Jerry Brown signed AB 1964 into law before a crowd of several hundred Sikh-Americans who had gathered to remember those slain at a Wisconsin temple earlier that summer. He spoke passionately about how California is a state of immigrants representing hundreds of nations, languages, and religions. His grandfather drove a wagon train in gold country, and only spoke German.
Mariko Yamada [D-Davis] had introduced the bill after being moved by a rally conducted by Sikhs and Muslims, to spotlight the suffering, harassment, bullying, and discrimination experienced by members of their communities post 9-11. The bill is historic and makes California law the most protective of religious freedom in the workplace in the entire nation.
Testifying before the Assembly Judiciary Committee, Yamada characterized the bill as the “Rosa Parks bill of the 21st century,” on account of its requirement that companies cannot segregate workers who express their beliefs through their appearance, such as clothing, hairstyles, jewelry, etc., by sending them to the back of the store, away from customers. The bill also adds explicit language requiring companies to accommodate such religious expression.
At the same time, in a compromise negotiated with the ACLU, the bill clarifies that employers do not have to accommodate religious activities or expression that would result in the violation of someone’s civil rights, or risk exposing the company to a civil rights lawsuit.
Finally, in the last but by no-means-least department, the bill clarifies that the obligation of employers to provide reasonable religious accommodations short of an undue hardship requires an employer to demonstrate that the hardship amounts to “a significant difficulty or expense.” This definition was already present in California law, but its application to religious accommodation was disputed. This standard is considerably higher than federal law (Title VII), which requires employers to demonstrate only something more than a de minimis hardship.
In our lobby efforts, we contended that these provisions would be a win-win for both employers and their workers. In twenty years of experience helping workers obtain religious accommodations, we are convinced that the tougher new law will help those employers who make a genuine effort to simply provide the requested religious accommodation. If an employer finds the request difficult or impossible, then the employer will have a much stronger “undue hardship” argument than if the effort was never made. The Ninth Circuit U.S. Court of Appeals routinely derides as “hypothetical hardships” those that are imagined to flow from accommodations that were never attempted. Moreover, many companies lacking experience with religious accommodation don’t understand how readily it can be provided: it is much easier than many in management believe.
New York passed similar legislation about a decade ago, and has not experienced a flood of new litigation. AB 1964’s most significant impact is likely to be on the culture, as persons who express their faith through the wearing of beards, head coverings, and the like will become more commonplace. Corporate dress policies requiring conformity are likely to become more flexible, to permit religious expression, or employers will find themselves in violation of the new law. California champions non-conformity, yet again!
But perhaps the best result will be to take a giant step toward equal employment opportunity for people of all faiths. The American vision of a nation as a beacon of freedom to the oppressed of all nations finds new life in California’s Workplace Religious Freedom Act. And as California goes, we hope the nation will continue to follow!
Room for Debate: As Mr. Reinach indicates, FEHA amendments raise not only employment law concerns but constitutional issues. Employers facing unusually burdensome hardship in religious accommodation scenarios may consider raising a constitutional defense. At some point, we believe, a particularly onerous statutory duty to accommodate an employee’s religious observances could create an unconstitutional establishment of religion.