Discrimination and Harassment

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: 

  1. 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.
  2. 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.
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In 2012, the Legislature amended the Fair Employment and Housing Act to expand potential liability for employers in three significant ways that increase risks and burdens for California employers.

1. Religious Dress and Grooming Practices: Deviating from federal law, FEHA now expressly protects religious dress and grooming practices as protected practices/characteristics and narrows the employer