Religious diversity, including the protection of religious minorities, is a core American value, as shown by its prominent placement in the First Amendment of the U.S. Constitution, in the establishment and free exercise clauses. California is, unsurprisingly, a leader in religious diversity. Many religious believers adhere to, and find deep meaning in, religious observances including particular days of rest and grooming and dress standards.
These religious practices or observances may at times conflict with an employer’s otherwise neutral requirements such as work schedules or dress codes. Employers are obligated under California law to accommodate these practices unless such accommodation would place an “undue burden” on the employer.
Statutory and case law provide some insight as to when an accommodation would be found to be an “undue burden.” On January 1, 2013, California enacted the Workplace Religious Freedom Act (WRFA), which amended the Fair Employment and Housing Act (FEHA) and established that, for the purposes of religious discrimination under the FEHA, protected “religious belief or observance” includes religious dress and grooming practices.
Further, the WRFA established that an employer cannot achieve a reasonable accommodation of a religious practice by segregating the employee from the general public; i.e., requiring an employee with a religious dress or head covering to work in a back office when their ordinary duties would have them at a public counter.
Finally, the WRFA clarified that the “undue burden” standard under the FEHA is a higher bar for employers to clear than the “de minimis” standard applied by some federal courts. Accommodations can include, but are not limited to, dress and appearance policy exemptions, schedule changes, voluntary shift trades, temporary accommodations, or transfers.
Further guidance can be drawn from published case decisions. In most instances, California employers will be required to accommodate employees’ scheduling differences for religious observances such as Sabbaths or religious holidays. For example, in the 2004 case California Fair Employment and Housing Commission v. Gemini Aluminum Corp., the California Court of Appeal held that an employer violated the FEHA by failing to initiate good faith efforts to accommodate the employee’s religious observance where the employer summarily denied, without discussion, the employee’s request, made two weeks in advance, to attend an important religious convention. Likewise, the Ninth Circuit held in the 1999 case Balint v Carson City, Nevada, that an employer may have to reorganize all employees’ shifts and allow split shift’s in order to accommodate an employee’s Sabbath.
Further, the U.S. Court of Appeals for the Third Circuit held in Fraternal Order of Police Newark Lodge No. 12. v. City of Newark that if the evidence shows that the employer would make a particular accommodation for a disability, it must be willing to make the same accommodation for religion. In Newark, two Sunni Muslim police officers challenged the City’s zero-tolerance no-beard policy for officers who had not received a medical waiver. However, the department routinely gave waivers to officers with pseudofolliculitis barbae (PFB), a skin condition that results in significant inflammation from shaving. The Court held that the department disfavored religion, as compared to the secular concern of disability, by accommodating officers with PFB but not religiously observant officers, and that the department was required to accommodate the Sunni Muslim officers by allowing them to wear beards of at least the same length as officers with PFB. Although this opinion is not binding on California courts, it was authored by then-Judge Samuel Alito, who is now a justice of the United States Supreme Court. Further, the Newark opinion was followed by the U.S. Court of Appeals for the Ninth Circuit, which does have jurisdiction over California, in an unpublished case regarding an Orthodox Jewish officer of the Las Vegas Police Department. While it is uncertain if California courts would apply this standard, the safest course for California employers is to provide at least the same accommodations for religious purposes as they do for disabilities.
Employers’ obligation to attempt to accommodate religious practices can be trigged by a belief or a suspicion that the employee may need an accommodation, even if the employee has not asked for an accommodation or informed the employer of a religious observance. The U.S. Supreme Court, in its 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer had violated federal discrimination law when it declined to hire a candidate for employment because she wore a headscarf to her interview, which arguably violated the company’s “Look Policy” and which it believed, but did not actually know, she wore as a religious practice that required an accommodation.
However, an employer’s obligations to accommodate employee religious practices are not without limitation. Some potential accommodations do place undue burdens on employers, and do not have to be granted.
For example, a requested accommodation puts an undue burden on an employer if it would require the employer to break the law. The Fifth Circuit held that the federal government was not required to accommodate a Sikh employee’s observance of wearing of a kirpan (a small sword) with a three inch blade where federal law prohibited blades of that length in federal buildings. The Eighth and Ninth Circuits have held that employers were not required to accommodate employees’ refusal, on religious grounds, to disclose their Social Security numbers.
In the 2004 case Peterson v. Hewlett-Packard Co., the Ninth Circuit held that an employer was not required to accommodate an employee’s religious beliefs by allowing the employee to post anti-gay signs quoting Biblical scriptures in the workplace. This would have created an undue burden because an employer need not accommodate an employee’s religious practice or expression if doing so would discriminate against his co-workers, deprive those co-workers of contractual or statutory rights, or impose that employee’s religious beliefs on them. The court also rejected the employee’s proposed accommodation of the company taking down its pro-diversity posters, because it would have infringed upon the company’s right to promote diversity and encourage tolerance and good will among its workforce.
Employers should take care to give serious consideration to employee requests or needs for accommodations of religious practices, and actively participate in an interactive process with employees to find an accommodation that does not create an undue burden; it is advisable that this effort be undertaken with the advice of experienced counsel.