For practicing Muslims, Ramadan began on March 10, 2024, and concludes on Tuesday, April 9, 2024.  Ramadan is a month in the Islamic calendar devoted to fasting and prayer.  Although not all Muslim students participate in fasting during this month, many schools throughout California do serve students who are abstaining from food and drink from sunrise to sunset.  During Ramadan, the traditional expectations of the school day or classes may be difficult for students who are fasting. 

Students’ Rights During Ramadan and Other Religious Fasting Holidays

Among other things, the First Amendment prohibits public schools from establishing policies that discriminate against a particular religion or belief.  Where school officials excuse students from class or provide accommodations based on nonreligious needs, school officials must treat religiously motivated requests similarly.  Additionally, Section 220 of the California Education Code prohibits any educational institution that receives or benefits from state financial assistance or enrolls students who receive state financial aid from discriminating based on religion.  Finally, schools may want to provide accommodations for students who are participating in religious fasting in order to achieve their mission and purpose, act with respect, and to demonstrate value of students’ religious beliefs.

Section 46014 of the California Education Code allows public school students to be excused from school to participate in religious exercises or to receive moral and religious instruction, with the written consent of their parents or guardians.  Thus, schools may excuse students on Eid al-Fitr, on Wednesday, April 10, 2024.  

Finally, most schools have policies and procedures that encourage instructors and teachers to create and foster a learning environment that is free from discriminatory attitudes, practices, events, or activities, and to prevent acts of hate or violence.  Accommodating and supporting fasting students is likely both consistent with legal requirements and in furtherance of school organizational missions.

Ideas to Support Fasting Students

Schools may adopt several easy and inclusive strategies to accommodate and support students.  Below are some common accommodations or ideas to consider for the learning environment for fasting students:

  1. Permit students to use an empty/quiet area of the classroom for prayer/religious observances.
  2. Excuse absences during religious holidays, and ensure students who miss class can make-up missed assignments.
  3. Allow alternative activities or make-up times for course work that requires strenuous physical activity, especially physical education.
  4. Allow fasting student to adjust their schedules for exams, or other demanding tasks, to accommodate their energy levels.
  5. Avoid penalties for students who may feel lethargic during the day.
  6. Provide students an alternative space during lunch or other times that students are eating.
  7. Provide positive behavior incentive systems that do not rely on food, so as not to exclude students who are fasting.
  8. Allow fasting students to choose seating arrangements that are comfortable for them, especially during activities or events that include food. 
  9. Collaborate with students’ families to understand specific needs or concerns, and work together to provide appropriate support.

On the Horizon

The California Legislature introduced Assembly Bill 2377 in February 2024.  If passed, this bill would excuse students in public schools K-12 who are participating in religious fasting from engaging in any physical activity components of a physical education course.  LCW is monitoring this legislation closely, and will provide updates and guidance if necessary.  In the meantime, schools should follow accommodation processes when requested to support the needs of students who are fasting during Ramadan, or any other religious holiday where fasting is practiced.

On March 15, 2024, the U.S. Supreme Court issued a long-awaited decision in Lindke v. Freed an important case concerning state action, the First Amendment, government officials, and social media.  The decision provides clarity on how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.

In Lindke v. Freed, Port Huron City Manager James Freed maintained a public Facebook page that anyone could see and comment on.  Freed posted primarily about his personal life, but also posted content related to his job as City Manager and solicited feedback from the public on issues of concern.  Freed responded to comments from city residents about community matters, and occasionally deleted comments that he considered “derogatory” or “stupid.”  During the COVID-19 pandemic, Freed posted about the pandemic.  Kevin Lindke commented on some of Freed’s posts and expressed discontent with the city’s response to the pandemic.  At first, Freed deleted Lindke’s comments.  Then, Freed blocked Lindke from commenting on Freed’s posts altogether.  Lindke sued Freed for violation of his First Amendment rights, alleging that Freed engaged in state action when he deleted Lindke’s comments and then blocked him.  Freed prevailed at the District Court and the Sixth Circuit affirmed.  Lindke appealed and the U.S. Supreme Court granted review.

In its decision, the U.S. Supreme Court articulates a test for determining, under federal law, when a government official who prevents someone from commenting on the official’s social media page engages in state action.  For such conduct to be state action, the official must have both:

  1. Possessed actual authority to speak on the state’s behalf on a particular matter; and
  2. Purported to exercise that authority when speaking in the relevant social-media posts.

The first part of the test is based on the fundamental prerequisite that conduct that allegedly causes the deprivation of a federal right must be fairly attributable to the state.  For example, Freed must have possessed actual state authority to post city updates, register citizen concerns, and otherwise communicate with residents on behalf of the city.  Such actual authority must be “rooted in written law or longstanding custom to speak for the State,” and must extend to speech of the sort that caused the alleged rights deprivation.

Under the second part of the test, the official must speak in furtherance of their official responsibilities.  The Court noted that if Freed’s Facebook page had carried a label or disclaimer stating that his page was personal or the views expressed his own, “he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”  The Court acknowledged that government officials have private lives and their own constitutional First Amendment rights to speak about their job and maintain some control over speech on their personal social media pages.  However, since Freed’s Facebook page was not identified as personal, it allows for the possibility that his page contained a mix of personal posts and posts in his capacity as a government official.  The Court found that this ambiguity requires a fact-specific inquiry into the content and function of each of Freed’s posts from which Lindke’s comments were deleted or from which Lindke was blocked from commenting.

The Sixth Circuit will now review the case in consideration of the U.S. Supreme Court’s decision and the above test.

In consideration of the decision in Lindke v. Freed, public officials may want to consider clearly differentiating between their personal and official social media pages, including placing disclaimers on their personal social media pages (e.g., the page is personal and the views expressed are their own), and keeping their personal social media pages private.

On March 15, 2024, the U.S. Supreme Court also vacated the decision in O’Connor-Ratcliff v. Garnier (Lindke v. Freed’s companion case), and remanded the case back to the Ninth Circuit to review it in a manner consistent with the Lindke v. Freed decision.  The U.S. Supreme Court had granted review of both cases to resolve a split between the Sixth District and the Ninth District on this important issue.  We will keep you advised of developments with Lindke v. Freed and O’Connor-Ratcliff v. Garnier.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

With the enactment of Senate Bill (“SB”) 553, the legislature amended Labor Code section 6401.7 and added Labor Code section 6401.9, requiring employers to adopt and implement a Workplace Violence Prevention Plan (“WVPP”) and corresponding training for their employees by July 1, 2024.

As the effective date for these statutory requirements rapidly approaches, LCW has developed a number of resources to help employers develop a WVPP for their worksites and training for their employees in order to comply with these new obligations (See here for additional information about LCW offerings).

On March 1, 2024, the Division of Occupational Safety and Health (“DOSH”), which is responsible for enforcing these sections of the Labor Code, published a model WVPP and provided guidance on ways employers may comply with the requirements set forth in Labor Code section 6401.9. 

Since the enactment of the bill, employers have had questions regarding the WVPP and the training requirements. Below are some common questions and the responses to them:

  1. What employers need to comply with SB 553?

SB 553 is applicable to almost all California employers.

The limited exceptions include:

(1) Employers that comply with Section 3342 of Title 8 of the California Code of Regulations (“CCR”) (e.g., health facilities, home health care and home based hospice, emergency medical services and medical transport, drug treatment programs, outpatient medical services to the incarcerated);

(2) Employers that are law enforcement agencies that are a “department or participating department” (See 11 CCR § 1001) and that have received confirmation of compliance with the Commission on Peace Officer and Training (“POST”) Program from the POST Executive Director, but only if all facilities operated by the agency are in compliance;

(3) Employers that have only remote employees (i.e., there is no workplace); and

(4) Employers that have fewer than ten (10) employees working at a place at any given time and in a place that is not accessible to the public, if the workplace has a compliant Injury and Illness Prevention Plan (“IIPP”).

  1. What exactly needs to be completed by July 1, 2024?

By July 1, 2024, all employers must implement a WVPP and train all employees.

This means that all employees must be trained by July 1, 2024.

  1. If we already have an Injury and Illness Prevention Plan or Emergency Preparedness Plans in place, do we still need to comply?

Yes, even if an employer has a compliant IIPP, Emergency Preparedness Plan, or even an existing Workplace Violence Prevention Policy, the employer is still subject to the requirements of SB 553.

The new law implemented very specific requirements so it is unlikely that any existing plans or policies will address each and every statutory requirement set forth in Labor Code section 6401.9. Please also keep in mind that existing policies and procedures may need to be updated to correspond with your WVPP.

  1. Can a law firm like LCW do the trainings for me?

Yes!

However, the trainings must be tailored to an employer’s specific WVPP. Thus, in order to provide trainings, LCW will need to work with you to align the training with your customized WVPP.

The training also must include an opportunity for employees to ask questions of a person knowledgeable about the employer’s plan, so LCW recommends that someone familiar with the employer’s workplace also be present during the training to answer specific questions about the plan and workplace.   

  1. Can the WVPP training be combined with other required annual trainings like sexual harassment?

The WVPP training requirements are separate and distinct from the annual training requirements related to the prevention of sexual harassment.

However, the separate trainings may be provided back-to-back in order to discharge the employer’s legal obligation for these trainings.

  1. How do I know if I have a multiemployer worksite? What does the coordination requirement entail in this context?

Multiemployer worksite is a term used to refer to a workplace where there is more than one employer that may be cited by DOSH in the event that an employee is exposed to a workplace hazard, such as a hazard related to workplace violence.  

Employers that may be cited for hazards related to workplace violence include:

(1) The employer of the employees who were exposed to the hazard;

(2) The employer that actually created the hazard;

(3) The employer that was responsible, by contract or through actual practice, for safety and health conditions on the worksite (i.e., the employer who had the authority for ensuring that the hazardous condition is corrected); and

(4) The employer who had the responsibility for correcting the hazard.

The most common type of a multiemployer worksite is a construction site where employees of various contractors may be working simultaneously.

However, multiemployer worksites may also exist where an employer hires another employer to provide or perform services at the workplace, such as janitorial services or maintenance or repair work.

If your organization uses services provided by another employer at your workplace, it is likely that DOSH would consider your workplace to be a multiemployer worksite.

In terms of the statutory obligations related to coordination with another employer on a multiemployer worksite, the Labor Code requires that all employees are trained on the WVPP and that all workplace violence incidents are reported, investigated, and recorded.

Thus, the WVPP must clearly establish to whom employees report incidents of workplace violence or hazards related to workplace violence and which employer is responsible for investigating the incident or hazard and for taking corrective action.

Additionally, the employer or employers of employees who experienced the workplace violence incident must record it in their Violent Incident Log.

  1. Do elected officials and volunteers need to be trained on the WVPP?

No, employers are only required to provide training to employees.

“Employee” is defined as “every person who is required or directed by any employer, to engage in any employment, or to go to work or be at any time in any place of employment.” (8 CCR § 347.)

However, despite the fact that elected officials and volunteers are not expressly covered by the Labor Code or subject to the WVPP, it would be prudent for employers to develop a workplace violence prevention plan for such individuals to ensure that proper action is taken in response to any threats of violence or incidents of workplace violence directed at such individuals.

  1. Does the Labor Code requirement that employees be informed of the results of investigations into workplace violence and corrective actions mean that employers need to disclose confidential employee information?

No, the Labor Code only requires employers to inform employees of the results of the investigation and any corrective actions that will be taken to address the hazard or incident of workplace violence.

There is no requirement under the Labor Code that an employer disclose confidential information about employees. Employers should also be careful when completing the required Violent Incident Log to omit any personally identifying information of affected employees.

Please see LCW’s previous post for additional information regarding SB 553. You may also access our resources regarding the WVPP and trainings here.

Conducting comprehensive and accurate workplace investigations is an integral part of an employer’s duties.  Whether the investigation involves allegations of minor violations of policy or more serious allegations of discrimination or harassment, each instance should be carefully analyzed to ensure all the relevant facts are uncovered so the employer can respond appropriately.  If left unaddressed, such allegations may later turn into complaints of retaliation, failure to prevent harassment, or discrimination/ bias in the workplace.  Compiled below are three common pitfalls to avoid, followed by three best practices to implement when conducting workplace investigations to help agencies ensure accuracy and prevent future liability.

DON’T:

Wait to get started.

Perhaps the most important piece of advice when dealing with complaints of misconduct is to begin acting on them immediately.  For example, employers have a legal obligation to promptly investigate all complaints of harassment, discrimination, or retaliation.  Additionally, for public safety departments, investigations run up against a one-year statute of limitations to impose any discipline for misconduct.  Accordingly, it is imperative that agencies begin as soon as reasonably practicable, ideally within a few days, in order to ensure plenty of time to gather the required information and evidence needed to evaluate next steps.  If you are using an outside investigator, ensure they are available on short notice. Some are in high demand and won’t be able to get to your matter quickly. There are plenty of good investigators who can be available soon, so do your research!

Be unorganized.

Disorganization is a very common pitfall for internal investigations and it can lead to troubling problems in the future when trying to impose discipline.  The final investigation should be based on an unassailable record of what was reviewed, who was interviewed, when each step was completed, and what was done with the findings.  These key elements will be scrutinized over and over again, so it is important to be systematic in your execution!

Be afraid to consider interim actions.

In some circumstances, it may be necessary to take interim steps to resolve the harm giving rise to the complaint while the investigation is ongoing.  For example, if allegations involve discrimination or harassment, employers should consider whether a temporary assignment transfer or administrative leave is appropriate for the accused wrongdoer.  However, be careful when considering transferring or placing the complainant on administrative leave, as it could be viewed as retaliation.

DO:

Document everything.

When in doubt, write it out! As noted above, it is likely for any investigation to be heavily scrutinized, meaning that the investigator will have to defend their methodology and contents of their investigation report again and again.  The best defense is always a good offense, so investigators should be proactive in creating an extensive paper trail of their investigation.  Be sure to collect and review all complaints, background documents, and additional evidence that is provided during the course of the investigation.  It is also a good practice to record interviews, or if the witness does not wish to be recorded, make note of that in the record and take detailed notes of the interview too.  If possible, having a second person available to take notes when no recording is being made can help ensure no details of their statement are overlooked.  The final investigation report should include all evidence the investigator considered in making their findings, as well as provide detailed analysis of how that evidence supports the findings.  An expansive investigation record is irreplaceable. 

Consider an outside investigator.

In some circumstances, to ensure an unbiased investigation, it may be necessary to consider an outside investigator.  This may be the case when the subject is a high-ranking employee or involves a high-profile incident where using an outside investigator will enhance the credibility of the investigation.  An outside investigator can also be useful when the issues involved are complex, or when claims of discrimination/harassment/retaliation are involved, to help reduce future allegations that the investigation was conducted with bias.  When choosing an outside investigator, be sure to ask for their familiarity and experience investigating the particular issues at hand, and perhaps even ask for a redacted final report from a past investigation to analyze their work product.  It’s okay to be picky to ensure that you are doing your due diligence.

Take prompt corrective action.

Lastly, after the investigation is complete, be sure to take prompt corrective action, if needed.  Delaying corrective action leaves the door open for claims of retaliation from the complainant and allegations of bias if an accused stays on administrative leave for an inordinately long period of time.  If misconduct is involved, it is in everyone’s best interest for it to be resolved quickly and efficiently.

Internal investigations can seem daunting; however, following these tips will help ensure the process is as thorough and efficient as possible.  And in all circumstances, if questions arise, it is highly recommended to consult with trusted legal counsel. 

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Though it is tempting to move on from the pandemic and to try and forget the deadly illness that started it, COVID-19 looks like it is here to stay in one form or another.  As updated on February 16, 2024, the California Department of Public Health reported a 7-day weekly average of 1,882 hospital admissions and 3.2% of deaths in the state attributable to COVID-19, with a COVID-19 test positivity rate of 7.1%.  In comparison, influenza was at a 7-day weekly average of 433 hospital admissions, .2% of deaths, and a test positivity rate of 6.5%.  Still, these numbers paint a rosy picture when compared to the height of the pandemic and for many, COVID-19 is now an afterthought as we return to offices, movie theaters, and our “normal” lives.

But as a new normal sets in, it is probably a good idea for employers to recognize and consider the following lasting effects of the COVID pandemic on their workforce.

Long COVID as a Disability

For some, living with Long COVID is the new normal.  In a September 2023 Data Brief published by the Centers for Disease Control and Prevention (“CDC”), survey data from 2022 showed that 6.9% of adults in the nation have had Long COVID at least once and 3.4% of adults actively had Long COVID at the time of the survey.  While these percentages seem small, it is important to remember that the workforce in 2022 was over 160 million strong.  Extrapolating the CDC’s survey results to that figure means that about 5.44 million members of the workforce had Long COVID.  Other gathered statistics have that figure as high as 16.3 million workers

Long COVID symptoms can last weeks, months, or even years after contracting COVID-19.  A non-exhaustive list of common symptoms includes tiredness and fatigue, difficulty thinking (referred to as “brain fog”), shortness of breath, headache, dizziness, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell.  Some less common symptoms can include damage to organs, such as the heart, lungs, kidneys, skin, and brain, or autoimmune conditions.  It is even possible to develop other health conditions such as diabetes, heart conditions, blood clots, or other neurological conditions following COVID-19. 

In July 2021, the United States Department of Health and Human Services Office for Civil Rights recognized that the symptoms of Long COVID can, under qualifying circumstances, be considered a disability under the Americans with Disabilities Act (the “ADA”).  To qualify as a disability under the ADA, Long COVID must cause a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, or speaking.  As a result, Long COVID is not always considered a disability, and an individualized assessment is necessary to determine whether a symptom substantially limits a major life activity. 

In California, the Fair Employment and Housing Act (the “FEHA”) provides an even broader definition of disability.  Though the ADA’s definition of disability requires that it “substantially limits” a major life activity, the FEHA definition requires only that it “limits a major life activity.”  See Cal. Gov. Code § 12926.    With potentially millions of workers still suffering from the effects of Long COVID — which may or may not qualify as a disability based on the circumstances — it is a good time to review what the law requires of employers to avoid disability discrimination when requiring employees to come back to the office. 

The Interactive Process and Telework as a Reasonable Accommodation

When asking employees with disabilities to return to the office, California employers need to remember that they have a continuing obligation to engage in a “timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.”  (Gov. Code, § 12940, subd. (n).)  Whether by the employee’s request or when the employer has knowledge of an employee’s disability, an employer must engage in the interactive process.  This is a “two-way” street that requires both the employer and the employee to participate.  While the interactive process has several nuances, at its most basic level it requires the employer and employee to work together to: (1) analyze the job position’s functions to establish essential and nonessential tasks, (2) identify precise limitations of the position, (3) find possible accommodations and assess each, (4) consider the preference of the employee, and (5) implement the accommodation that is most appropriate for employee and employer, while giving primary consideration to the employee’s preference unless another equally effective accommodation may be used instead.  Employers should document their efforts throughout.

Following the pandemic, one rising requested accommodation is telework.  Our firm has discussed telework before, and readers are encouraged to read our past guidance, available here, here, and here.  As early as 2003, the United States Equal Employment Opportunity Commission (“EEOC”) recognized telework as a possible reasonable accommodation.  So while telework as a reasonable accommodation is hardly new, the pandemic brought it into renewed focus and tested its limits.  For some, this meant suspending policies that restricted or forbade telework and building infrastructure to support remote workers; for others, it meant temporarily excusing certain essential functions to allow office closures.  Some employees even parlayed their newfound telework freedom into out-of-state, or in the rare case out-of-county, work locations. 

As a result, the interactive process factual landscape may have shifted significantly during the pandemic and employers should take care to reassess whether telework is a reasonable accommodation in light of what happened during pandemic conditions.  Luckily, the EEOC has provided some guidance on COVID-19’s impact on the interactive process.  Notable highlights include that telework is not an automatic reasonable accommodation just because the employer had authorized it in order to prevent the spread of COVID-19; that the temporary excusal of one or more job position essential functions to allow telework did not permanently eliminate those essential functions; and that telework may pose an undue hardship on the employer even where the employer previously allowed it.  Similarly, employees may be able to point to telework allowed during the pandemic as “proof of concept” that telework does not impose an undue hardship on employers or that certain job functions are not truly essential.  Central to each of these positions is that the interactive process is fact-specific. 

So, if you are an employer who has had thoughts about requiring a return to office, I’d suggest you keep the requirements of the ADA and the FEHA in mind.  Long COVID has affected a significant amount of the workforce and may continue to affect even more, so be on the lookout for any employees that may need a reasonable accommodation to counter that condition.  And if you do learn an employee needs a reasonable accommodation, be prepared for new pandemic-related facts to play an increasing role in your interactive process analysis. 

MP900289067This article was originally published in July 2016.  The information has been reviewed and is up-to-date as of February 2024.

Christianity, Judaism, Islam, Buddhism, and Hinduism are typically cited as the major religions of the world, although there are many others that have tens of millions of adherents or more.  The United States has no official established religion, and instead since its founding has guaranteed its citizens the right to free choice and exercise of religion.

For state agencies and local governments, these principles are not just abstractions but can come up in daily work.  In fact, public employers often face situations in which the religious beliefs of their employees become a major issue.  As a legal matter, the U.S. Constitution, the California Constitution, and state and federal statutes all demark boundaries that can guide public agencies in how to address these issues.  Unfortunately, lines in this area are often blurry.  Also, the scenarios can involve firmly held, personal beliefs on matters ranging in significance from the timing of daily religious practices to the very meaning of life.  Accordingly, workplace conflicts in this area can quickly escalate into matters of high emotional intensity that affect morale and harm productivity, and can easily develop into a grievance or lawsuit.

The following is a brief question and answer that explains the primary legal doctrines and addresses some commonly-occurring factual scenarios.

  1. What if employees seek to proselytize in the public sector workplace?

What if an employee spends a substantial amount of time in the government workplace talking to co-workers about religion?  What if they use the email system to invite co-workers to church events or to explain positions on matters of faith?  These questions involve all of the sources of law mentioned above.  In particular, the First Amendment of the U.S. Constitution prevents the government from creating an “establishment” of religion, from prohibiting the “free exercise” of religion, and from abridging freedom of speech (including certain speech in the government workplace).  The California Constitution contains similar provisions.  Title VII, a federal civil rights statute and California’s Fair Employment and Housing Act (“FEHA”) prohibit employers (both public and private) from discriminating against employees on the basis of religion, and require reasonable accommodation of employee religious practices.

As is evident from this list, the laws sometimes appear to conflict – public employers cannot use their resources to promote religion (under the Establishment Clause) but cannot discriminate against employees on the basis of religion (under Title VII and the FEHA) and are restricted in their ability to allow expression of some viewpoints but not others (under constitutional free speech law), including views on matters of faith.

Given these potentially contradictory requirements, how does a public employer respond to employees who wish to speak, e-mail, or otherwise communicate about religion in the workplace?  One approach many employers use is to establish a policy limiting employees’ use of work time and the employer e-mail system to work-related matters only (typically with an allowance for incidental personal use, and a carve-out for use mandated by labor relations laws).  Pursuant to this type of rule, employees may freely express their views on their own time as long as they do not interfere with the work of others.  But if an employee spends too much time at work talking with co-workers about non-work-related matters, including religion, then this can be addressed as a violation of the personnel rule.  The same is true of the employer’s email system.  Lengthy emails on religious topics can be found to violate the policy, not because of the viewpoint expressed, but because of the lack of relationship to work.  The issue can certainly become more complicated, for example, if the religious themes interweave with matters that relate to work, or if the employer does not have this type of rule in place, and freely allows employees to use the email system for purposes that do not relate to work.  It is prudent to consult legal counsel in these circumstances.

  1. What if employees seek to take time out for prayer meetings in the public sector workplace – during the work day or on the agency’s property?

This type of scenario raises the same concerns as the previous one.  The First Amendment and the California Constitution limit a public agency’s ability to curb employee free speech and association.  But again, the use of government property to promote religion can infringe principles of separation of church and state, and violate the First Amendment’s Establishment Clause.  A public employer’s making special accommodations for, and expending resources to support, prayer meetings can be problematic, because it could easily be viewed as the government promoting religion.

To navigate these challenges, many government employers adopt an approach similar to that described in the previous section.  They allow employees to use a break room or facility to talk about basically any topic, on their own time.  Employees can then use the break room for prayer to the same extent employees are allowed to use the room to talk about any other type of topic.   For example, if employees are allowed to use empty areas to congregate on their own time and plan social events, employees should not be prohibited from using the area just because their speech happens to be on religion.

This is the simple answer – many circumstances will not present issues that are easily resolved.  If organized religious activities by some employees tend to create a hostile environment for other employees, this will raise concerns under state and federal laws that prohibit workplace harassment.  Also, as described in the next section, an employee may reasonably come forward and explain that his religion requires prayers at particular times during the workday, and claim a particular type of accommodation is necessary.  Federal and state statutes require reasonable accommodation of religious practices, and the employer will have to evaluate the situation carefully to comply with those laws.

  1. What if employees request workplace accommodations for religious dress or practices?

One the most important and sometimes confusing obligations employers face is responding to requests for workplace accommodations based on religion.  Requests can include those relating to religious dress, for examples, headscarves, turbans, or burqas.  Others can be more difficult: what if an employee requests for religious reasons to carry a kirpan, a Sikh ceremonial knife that is supposed to be worn at all times, in the workplace, even in areas where weapons are prohibited?  What if an agency employee asks to have religious icons or images in offices or cubicles visible to the public whom the employee serves?  Similar issues can arise relating to Christmas or other holiday decorations, Bible quotes or religious content as part of workplace communications, refusals to take certain oaths, or requests not to work certain days of the week.

California law is the first place to look for answers.  In general, it requires reasonable accommodation of employees’ religious grooming and practices, unless accommodation would impose an “undue hardship.”  California’s FEHA sets forth specific requirements as follows.  It makes it unlawful for an employer “to refuse to hire or employ a person or . . . to discharge a person from employment or . . . discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance . . . , but is unable to reasonably accommodate the religious belief or observance without undue hardship . . . .”  (Emphasis added.)  This obligation includes the employer’s exploring “the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time or by another person.”  (Government Code section 12940(l)(1).)  Under the FEHA, undue hardship means “an action requiring significant difficulty or expense,” when considered in light of factors such as the “nature and cost of the accommodation needed,” financial resources of the facilities and of the employer, the size of the business, and the type of operations.  (Gov. Code section 12926(u).)

The applicable federal anti-discrimination law, Title VII, 42 USC sections 2000e-2(a)(1), 2000e(j), imposes its own accommodation requirement on employers, including public employers, and is in many ways similar to California law, although its accommodation requirements are considered not as extensive.  (The federal Equal Employment Opportunity Commission provides some helpful guidance on how to navigate the accommodation process under federal law.)

In practice, applying these standards often depends very much on individual facts and circumstances.  An employer should be proactive and diligent in considering accommodations, and cautious in asserting the defense of undue hardship.  Undue hardship can often be shown where accommodation of the employee’s religious practice would require significantly more than ordinary, administrative costs, impair workplace safety, cause co-workers inordinately to assume burden of work, or conflict with statute or regulation.

Finally, constitutional considerations can enter the analysis.  If a public employee demands, as an accommodation, to be able to display religious icons to the public in discharging work responsibilities or to proselytize to the public in some way, this could well create First Amendment Establishment Clause or other constitutional concerns.  In turn, this would support a public employer’s defense of undue hardship.

  1. What if an Employee invents their own religion?

If an employee invents their own religion, that employee can actually benefit from statutory anti-discrimination laws.  A religion in this context does not need to have existed for any length of time, or have any particular number of adherents.  It must, however, meet a definition of “religion” that has been thoughtfully constructed by the Courts.  In 2002, the California Court of Appeal in Friedman v. Southern Cal. Permanente Medical Group, interpreting the protections to individuals on the basis of religion that are afforded by the FEHA set forth a three-part test.  The test is designed to assure that the “beliefs, observances, or practices” at issue occupy in the person’s life “a place of importance parallel to that of traditionally recognized religions.”  The Court in Friedman described the three factors as follows: “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.  Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.  Third, a religion often can be recognized by the presence of certain formal and external signs,” meaning for example “teachers or leaders; services or ceremonies; structure or organization; orders of worship or articles of faith; or holidays.”  (The Court in Friedman, applying this test, found that veganism is not a religion.)

The test set forth above is California’s statutory test for defining a religion.  Under the U.S. Constitution, however, the test for what qualifies as a “religion” is more conservative, and based on history and tradition.  In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the U.S. Supreme Court concluded that Santeria, a hybrid African/Catholic faith mandating animal sacrifice, constituted a “religion” entitled to First Amendment protection, based in part on the “historical association between animal sacrifice and religious worship.”

In conclusion, in terms of practicalities, legal issues relating to religion in the workplace can have a strong emotional dimension for those concerned. Sensitivity and tolerance are extremely important in crafting solutions to these issues.  Also, management should consider at the outset that employees asking for accommodation of religious beliefs or practices will likely understand what is at stake for management and their co-workers, and will likely help management arrive at a way to resolve the issue.  Finally, working with legal counsel is very important in resolving disputes that arise in this complex area of the law.

In a much-publicized congressional hearing on December 5, 2023, the presidents of Harvard, MIT, and the University of Pennsylvania faced pointed questions by the House Education and Workforce Committee regarding antisemitism on college campuses. Several exchanges—and public debate thereafter—focused on whether certain violent or politically-charged speech would violate the universities’ Code of Conduct, particularly the sections prohibiting harassment and discrimination.

These three private universities certainly aren’t the only institutions facing challenging questions regarding students’ and employees’ political speech. In fact, the issue is more challenging for public institutions.  The hearing raises an opportunity for a refresher on public agencies’ and public schools’ legal obligations when it comes to the tangled intersection of free speech and unlawful harassment and discrimination. Below are a few broad principles to keep in mind.

Free Speech vs. Harassment and Discrimination

Public agencies, including public schools, are subject to the First Amendment of the U.S. Constitution, which prohibits them from infringing on employees’ or students’ free speech rights. (For more on public employees’ right to free speech, see this LCW blog post.) At the same time, these entities are subject to a variety of laws that require them to act to address harassment and discrimination based on an employee’s or student’s protected status.  

These are distinct but overlapping legal obligations. On the one hand, freedom of speech does not absolve a school or agency from responding to reports of harassment or discrimination. If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the entity has a duty to take prompt and effective steps to eliminate the hostile environment and prevent the harassment from reoccurring.

On the other hand, disciplining speakers or preventing them from expressing protected speech can violate the Constitution. Moreover, if an organization’s written policies prohibiting harassment, discrimination, or bullying are too expansive—for example, a bullying policy that contains a prohibition on “offensive” speech—there is a risk that a court could find the policies vague and overbroad and thus invalid under the First Amendment.

Public schools and agencies, like the courts, must balance these legal obligations. Whether the speaker had a First Amendment right to say something—in a classroom, at a protest, or elsewhere—is a crucial question, but the inquiry should not end there. Even if the school or agency chooses not to shut down the speech or discipline the speaker, the institution can take creative measures such as issuing a statement to the community or offering students and employees alternatives to exposure to the speech.

Conduct and Targeting an Individual Are Not Prerequisites for Taking Action

One point of confusion that arose from the congressional hearing is whether speech must cross over into conduct in order to constitute harassment. Under federal and state anti-discrimination laws, the answer is no. Speech based on protected status, including epithets, chants, derogatory comments, slurs, and jokes, can rise to the level of unlawful harassment if it sufficiently alters the conditions of employment or interferes with a student’s access to educational benefits or opportunities.

Moreover, speech need not target an individual in order to constitute harassment under anti-discrimination laws. Speech issued to the public—for example, a chant at a rally or media published online—can rise to the level of harassment if it meets the legal criteria for creating a hostile work or educational environment.

The Importance of Enforcing Policies Consistently

As if the above reminders are not complicated enough, public agencies and schools should also be mindful that enforcing harassment and discrimination policies inconsistently will almost certainly give rise to legal challenges. An individual subject to discipline may claim impermissible viewpoint discrimination under the First Amendment if they can point to a circumstance in which the entity did not similarly enforce its policies against a speaker who expressed a different viewpoint. There is an additional risk of a discrimination claim if these differing viewpoints are tied to a protected status—for example, if an entity imposes discipline for or restrains speech denigrating one ethnic or religious group but not another.

Conclusion

As the congressional hearing on December 5 illustrated, the intersection of free speech and anti-discrimination laws can raise more questions than answers. Please seek counsel when faced with complex issues involving both legal obligations.