Slide 2 Oh, God! Coming to Terms with Religion in the Workplace
Phyllis W. Cheng, Esq., DirectorAnne Richardson, Esq. David Kadue,
Esq., Partner Alan J. Reinach, Esq. Executive Director Department
of Fair Employment & Housing Hadsell Stormer Richardson &
Renick LLP Seyfarth Shaw LLP Church State Council Orange County Bar
Association Labor & Employment Law Section August 12, 2013 |
Newport Beach, California Slide 3 Overview Part I: DFEHs Authority
and Enforcement of Religious Discrimination and Harassment. Part
II: Heaven Cant Wait: Religious Discrimination in the Here and Now
Part III: Reasonable Accommodation in Dress, Grooming and
Appearance Part IV: Religious Accommodation in California and AB
1964: To accommodate or not? No longer the question 2 Slide 4 Part
I DFEHs Authority and Enforcement of Religious Discrimination 3
Slide 5 Introduction The Department of Fair Employment and Housing
(DFEH) is Californias civil rights agency. Mission: The Department
of Fair Employment and Housings mission is to protect Californians
from employment, housing & public accommodation discrimination
and hate violence. The DFEH receives, investigates, conciliates,
mediates, and prosecutes complaints alleging discrimination in
housing throughout the State of California. 4 Slide 6 DFEH
Jurisdiction Fair Employment and Housing Act (Gov. Code, 12900 et
seq.). Unruh Civil Rights Act (Civ. Code, 51 et seq.). Disabled
Persons Act (Civ. Code, 54 et seq.). Ralph Civil Rights Act (Civ.
Code, 51.7). 5 Slide 7 BASIC PROTECTIONS UNDER THE FEHA
Discrimination relating to terms and conditions of employment.
Discrimination related to job training, classification or
assignment. Interference with other employment opportunities.
Harassment. Retaliation. Discriminatory advertising. 6 Slide 8 7
Slide 9 DFEH Employment Flowchart 8 Slide 10 9 Slide 11 10 Slide 12
AB 1964 Religious Discrimination Amendments to the FEHA Effective
January 1, 2013, the FEHA is amended to : Clarify that an employers
obligation to accommodate employees religious beliefs or
observances includes accommodating religious dress and grooming
practices, as defined; (Gov. Code, 12926, subd. (p).) Clarify that
the standard for determining whether a religious accommodation
poses an undue hardship is the same standard used for evaluating
disability accommodations; (Gov. Code, 12926, subd. (t), 12940,
subd. (l).) State expressly that an accommodation is not reasonable
if it requires segregation of an employee from customers or the
general public. (Gov. Code, 12940, subd. (k)(2).) Revised FEHA
religious discrimination regulations to come. 11 Slide 13
Exemptions Discrimination by religious organizations or ministerial
exception. (Gov. Code, 12962, subd. (d).) Religious corporation;
Not organized for private profit. However, hospitals and health
care facilities open to the public are subject to the FEHA even if
owned by or affiliated with religious entities. (Gov. Code,
12926.2.) 12 Slide 14 REMEDIES Lost salary or wages. Transfer.
Purge of personnel file. Emotional distress. Attorneys fees.
Punitive damages. Court-ordered policy changes and training. 13
Slide 15 Part II Heaven Cant Wait: Religious Discrimination in the
Here and Now 14 Slide 16 Religion claims: a tiny mustard seed
Relatively rare, but growing: FY 1997: just 1709 EEOC charges (2.1%
of total). FY 2011: 4151 (now 4.2% of total). Most cases involve
requests for religious accommodation, where demands of faith
conflict with employer policies on scheduling, dress, grooming, and
other matters. Slide 17 Statutory Basis for Protections Title VII
forbids discrimination because of race, color, gender, national
origin, and religion, circularly defined to include all aspects of
religious belief, observance, and practice. Employers must
reasonably accommodate sincere religious practices, unless doing so
would create undue hardship. duty reflects basic discrimination law
(per EEOC and some state courts, by a version of adverse impact
theory). accommodation duty made express in 1972 Title VII
amendments. Slide 18 California Law Fair Employment and Housing Act
(Cal. Govt Code 12900 et seq.). FEHA defines employer to include
public employers and prohibits employment practices based on
religious creed, including (per Govt Code section 12940(l )): 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 on the conduct of the business of the employer .
California Workplace Religious Freedom Act, eff. 1/1/13 (of which
more later). 17 Slide 19 Courts follow two-part framework to
analyze religious accommodation claims. T iano v. Dillard Dept
Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). Employee makes out
prima facie case: (1) bona fide religious practice conflicts with
employment duty (cf. Tiano (attending particular pilgrimage not
dictated by beliefs)); (2) employer was informed of the conflict;
and (3) employer imposed discriminatory treatment because of
inability to fulfill job requirements. Franks v. Nebraska, 2012
U.S. Dist. LEXIS 2829 (D. Neb. Jan. 10, 2012) (rejecting claim of
correctional officer whose pocket-sized Bible was seized as
contraband, as no discipline had ever occurred). Religious
Accommodation Slide 20 Religious AccommodationBurdens of Proof
Employee must show belief or practice was sincere (not fake); truly
religious (not mere philosophy); and truly required (not mere
preference). Then employer must show it (i) engaged in good faith
to explore accommodate religious practices or (ii) could not
reasonably accommodate without incurring undue hardship. EEOC v.
Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989). Slide 21 What Counts
as Religion? Regulatory definitions of religion: Title VII: Moral
or ethical beliefs as to what is right and wrong that are sincerely
held with the strength of traditional religious views. 29 C.F.R.
1605.1. FEHA: Any traditionally recognized religion as well as
beliefs, observations, or practices that an individual sincerely
holds and that occupy in the individuals life a place of importance
parallel to that of traditionally recognized religions. Cal. Code
Regs. tit. 2, 7293.1. Slide 22 What Qualifies as Religion?
Nontraditional faiths can qualify. World Church of the Creator
(preaching white supremacy): Peterson v. Wilmur Communications,
Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002). Wiccan: Benz v. Rogers
Memorial Hosp., Inc., 2006 WL 314407 (E.D. Wis. 2006) (assuming
Wiccan qualifies as Title VII religion). Slide 23 What Qualifies as
Religion? Some well-established belief systems might not qualify:
Veganism: Friedman v. SCPMG, 102 Cal. App. 4th 39 (2002) (veganism
is personal philosophy, not religious creed, as it does not address
purpose of life, derive from ultimate faith, or bear external signs
of religious organization). Ku Klux Klan membership: Bellamy v.
Masons Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (klan not a
religious organization even if its meetings feature "religious pomp
and ceremony). Slide 24 Sincerity Requirement One need not be a
saint or a scholar to claim the faith: [E]mployee does not cease to
be discriminated against because he temporarily gives up his
religious practice and submits to the employment policy. EEOC v.
Townley Engineering & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir.
1988). Catholic was sincere about attending Sunday mass even if she
could not identify all of the elements of a Catholic mass Pozo v. J
& J Hotel Co., 2007 WL 1376403 18 (S.D. N.Y. 2007). Slide 25
Sincerity Requirement Employers can inquire into sincerity before
deciding whether to grant religious accommodation: Bind v. City of
New York, 2011 U.S. Dist. LEXIS 11369 (S.D.N.Y. Sept. 30, 2011)
(employer could see if employee really attended synagogue services
she cited as reason to resist schedule change) EEOC Compliance
Manual: If accommodation request gives insufficient information,
employer with good-faith doubt can make limited inquiry into
whether the request reflects a religious belief or practice that
requires accommodation. Slide 26 Reasonable Accommodation Religious
observances conflicting with work include observing Sabbath;
praying or other religious activity during work hours; missing work
to mourn for deceased relative; refusing to submit to medical exam;
refusing to join union or pay union dues; adopting certain hair
style or beard; wearing certain clothing or head coverings; and
displaying certain jewelry, objects, or tattoos. Slide 27
Reasonable Accommodation Notice Employees need not comprehensively
explain how and why religion needs accommodation. California Fair
Employment & Housing Com'n v. Gemini, 122 Cal. App. 4th 1004
(2004). Employee objecting to drug screening in form of saliva test
instead of blood or hair or urine test (based on tenet of Santeria
religion) gave sufficient notice of religious conflict and proposed
accommodation. EEOC v. GKN Driveline N. Am., 2010 U.S. Dist. LEXIS
129815 (M.D.N.C. Dec. 8, 2010). Slide 28 Reasonable Accommodation A
reasonable accommodation eliminates the conflict between employment
requirements and religious practices. Wright v. Runyon, 2 F.3d 214,
217 (7th Cir. 1993). Workplace adjustments allowing religious
practice include flex scheduling, voluntary job swaps,
reassignments, transfers. Employers need not provide the preferred
accommodation. Ansonia Board of Ed. v. Philbrook, 479 U.S. 60, 68
(1986). EEOC: employers must offer the option that least
disadvantages the individual as to employment opportunities. 29
C.F.R. 1605.2(c)(2)(ii) (disapproved of in Ansonia, fn. 6). Slide
29 Undue Hardship Employers must resolve conflicts between employee
religious practice and company policy, unless modifying policy
would involve > trifling or minimal cost. Accommodations cause
undue hardship if they cost something beyond inconvenience
(efficiency losses, economic costs, risks to health or safety).
EEOC considers as only de minimis such costs as. infrequent payment
of premium wages as stop-gap measure. costs to administer job swaps
and attendance records. Slide 30 Undue Hardship Whats > De
Minimis? EEOC examples: more than ordinary administrative costs.
diminishing efficiency in other jobs. infringing on co-workers
rights or benefits, or causing them to carry employees share of
hazardous or burdensome work. impairing workplace safety. causing
conflict with other laws. 29 Slide 31 Undue Hardship Cf. ADA
definition, which is much harder to meet. Title VII case led to
different interpretation of same language. TWA v. Hardison, 432
U.S. 63 (1977). airline machinist in 24/7 operation was fired for
refusing to work on his Sabbath. anything > de minimis cost
incurred in giving Saturdays off would be an undue hardship.
Proposed accommodations in Hardison creating undue hardship: (1)
four-day workweek, (2) regular premium pay for replacements, (3)
job swaps trumping seniority rights. Slide 32 Undue Hardship Why de
minimis? Constitutional concerns? Not expressly stated in TWA v.
Hardison majority opinion, but noted in Justice Marshalls dissent.
Thornton v. Caldor, Inc., 472 U.S. 703 (1985). Connecticut statute
entitling employees not to work on Sabbath was unconstitutional
establishment of religion, exalting religious observance over all
secular interests. Concurring opinion: Title VII is constitutional
because (i) it requires reasonable rather than absolute
accommodation and (ii) it extends to all religious practices rather
than only the Sabbath observance, making it an anti-discrimination
law rather than an endorsement of particular religious practice
Slide 33 Sample Reasonable Accommodation Cases Proselytizing often
need not be accommodated: Employer need not allow employee to
discuss religion with clients, display religious items in cubicle,
and use conference room for prayer meetings. Berry v. Dept of
Social Services, 447 F.3d 642 (9th Cir. 2006). Employer need not
permit evangelical employee to post messages castigating gay
co-workers, and need not exclude sexual orientation from workplace
diversity programs. Peterson v. Hewlett-Packard Co., 358 F.3d 599
(9th Cir. 2004). Employer need not allow employee to wear
anti-abortion button displaying picture of fetus. Wilson v. U.S.
West Communications, 58 F.3d 1337 (8th Cir. 1995). Slide 34
Sabbatarian Accommodation Baker v. Home Depot, 445 F.3d 541 (2d
Cir. 2006). Home Depot store manager did not honor Bakers request
for Sundays off to celebrate Sabbath, when manager simply gave time
off for Sunday-morning church attendance, while requiring work on
Sunday afternoons or evenings. The shift change, while it enabled
Baker to attend church, did not accommodate his religious
requirement to abstain from work totally on Sundays. 33 Slide 35
Sabbatarian Accommodation EEOC v. Texas Hydraulics, 2008 U.S. Dist.
LEXIS 40482 (E.D. Tenn. April 16, 2008) Employer must show it
attempted to accommodate the employees religious beliefs. Proposed
accommodation to allow plaintiff to ask co-workers to work Sabbath
shifts was insufficient, as plaintiff considered it a sin to ask
others to work for him. Employer could have looked outside
plaintiffs department for workers to cover his Sabbath shifts. 34
Slide 36 Sabbatarian Accommodation EEOC v. Rent-A-Center, Inc.
(D.D.C. 2013) Rent-A-Center, Inc. (RAC) had no duty to accommodate
store manager who requested Saturdays off to practice his faith as
a Seventh Day Adventist. Requiring RAC to give every Saturday off
would create undue hardship because (i) store manager position was
critically important, (ii) Saturdays were central to RACs weekly
cycle, and (iii) RAC had policy requiring all store managers to
work on Saturdays. 35 Slide 37 Part III Reasonable Accommodation in
Dress, Grooming and Appearance 36 Slide 38 Dress/Grooming
Accommodation Common Issues Hijab Khimar Turban Yarmulke Beard
Piercings Tattoos 37 Slide 39 Dress Practices Accommodation Safety
Issues EEOC v. The Geo Group, 616 F.3d 265 (3d Cir. 2010) (security
concerns for prison company meant that allowing khimar traditional
Muslim headcovering as exception to no-headgear policy would create
undue hardship, in that khimars could be used to smuggle contraband
and as a weapon to attack a prison employee). But see Khatib v.
County of Orange, 639 F.3d 898 (9 th Cir. 2011) (Gould, J,
concurring) (In case arising under RLUIPA, shame and distress felt
by a Muslim woman detainee who must appear without her hijab under
Orange County Jail policy is precisely the kind of mischief RLUIPA
was intended to remedy; case subsequently settled with change in
policy). Finnie v. Mississippi, 2012 U.S. Dist. LEXIS 6679 (N.D.
Miss. Jan. 17, 2012) (upholding firing of Pentecostal detention
officer whose faith forbade her to wear pants; permitting skirts as
exception to pants- only policy would pose risks to safety and
security, creating undue hardship). 38 Slide 40 Dress Practices
Accommodation Look Policies and Dress Codes EEOC v. Abercrombie
& Fitch Stores, 798 F. Supp. 2d 1272 (D. Okl. 2011) (granting
summary judgment to EEOC where store, in denying sales model job
because applicant wore a Muslim headscarf, did not show actual
undue hardship, as opposed to mere speculation that head scarf
would affect stores brand image and sales volume). EEOC v.
Abercrombie & Fitch Stores, 2013 U.S. Dist. LEXIS 51905 (N.D.
Cal. April 9, 2013) (granting partial summary judgment to EEOC on
undue hardship defense given the lack of evidence of the degree to
which Look Policy compliance affects store performance or brand
image). Goldman v. Weinberger, 475 U.S. 503 (1986) (Free Exercise
Clause did not require the Air Force to exempt an Orthodox Jewish
officer from uniform dress regulations so that he could wear a
yarmulke indoors. In a military community, the Court observed,
"there is simply not the same [individual] autonomy as there is in
the larger civilian community.") Congress responded to Goldman by
prescribing that "a member of the armed forces may wear an item of
religious apparel while wearing the uniform," unless "the wearing
of the item would interfere with the performance [of] military
duties [or] the item of apparel is not neat and conservative." 10
U.S.C. 774(a)-(b). Goldman v. Weinberger, 475 U.S. 503 (1986)Free
Exercise Clause10 U.S.C. 774(a)-(b) 39 Slide 41 Dress Practices
Accommodation Piercings, Jewelry and Tattoos Cloutier v. Costco
Wholesale, 390 F.3d 126 (1st Cir. 2004). member of Church of Body
Modification refused to cover multiple facial piercings, in
violation of personal appearance policy. proposed accommodation
exemption from appearance policy would pose undue hardship on
Costco because: Costco had legitimate interest in maintaining
professional image. losing control of public image could cause
economic costs. EEOC v. Red Robin Gourmet, 2005 U.S. Dist. LEXIS
36219 (W.D. Wash. 2005) Employee who practiced Kemeticism, a
religion with roots in ancient Egypt or Kemet, refused to cover his
tattoos which encircled his wrists. Court denies summary judgment
to the employer because there was no evidence that any customers
complained about his tattoos, or any other employees tattoos; no
evidence that visible tattoos are inconsistent with a
family-oriented and kid-friendly image; the tattoos were written in
ancient Coptic; ancient Coptic unlikely to offend customers. 40
Slide 42 Grooming Practices Accommodation Brown v. F.L. Roberts
& Co., 419 F. Supp. 2d 7 (D. Mass. 2006) (summary judgment for
employer who enforced grooming policy by removing Rastafarian Jiffy
Lube technician from customer contact because he refused to cut his
hair; granting him an exemption would have created undue hardship
by adversely affecting companys public image). Stanley v. State of
California, 2012 U.S. Dist. LEXIS 178946 (E.D. Cal. Dec. 18, 2012)
(rejecting accommodation claim by Rastafarian correction officer,
because employer did permit him to wear a neat facial beard).
Bahtia v. Chevron U.S.A., 734 F.2d 1382 (9th Cir. 1984) (employer
need not permit Sikh to wear beard where company policy reflected
need to wear respirator with gas-tight face seal because of
potential exposure to toxic gases). But see Booth v. Maryland, 327
F.3d 377 (4 th Cir. 2006) (summary judgment reversed on Rastafarian
correctional officers claim of violation of First Amendment freedom
of religion where employer allowed accommodations to other
religions but did not allow him to wear modified dreadlocks). 41
Slide 43 Defenses That Dont Cut the Mustard If we allow one person
to do it, then we will have to let everybody do it. Rejected by
EEOC v. Alamo Rent-a-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006)
Employees would grumble about a particular accommodation. Rejected
by Opuku-Boateng v. State of California, 95 F.3d 1461 (9 th Cir.
1996) Spiritual hardship to a company that mandates a
nondenominational devotional services Rejected by EEOC v. Townley
Engineering & Mfg Co., 859 F.2d 610 (9 th Cit. 1989) Our
customers dont feel comfortable with..... Rejected in BFOQ context
by numerous decisions. See, e.g., Lam v. University of Hawaii, 40
F.3d 1551, 1560 fn. 13 (9 th Cir. 1995). 42 Slide 44 New Frontiers
Religion at Work California Workplace Religious Freedom Act AB
1964, amending FEHA defines undue hardship a la ADA, taking many
factors into account (rejects TWA v. Hardison standard) says
religious observance includes dress practices (religious clothing,
head or face coverings, jewelry, artifacts, etc.) and grooming
practices (all forms of head, facial, and body hair) deems
unreasonable any accommodation that would segregate employees but
requires no accommodation that would cause violation of any other
civil rights law 43 Slide 45 Part IV Religious Accommodation in
California and AB 1964: To accommodate or not? No longer the
question. 44 Slide 46 Workplace Religious Freedom Act 1.Employers
must provide religious accommodations; 2.Religious dress and
appearance must be accommodated; 3.Workers cant be segregated due
to religious dress and appearance. 45 Slide 47 Employers Must
Provide Religious Accommodations 46 1.Supreme Courts peyote case
ruling does not apply. 2. FEHA defines undue hardship as
significant difficulty or expense. Slide 48 Government Code section
12940, subdivision (l)(1) unable to reasonably accommodate the
religious belief or observance without undue hardship, as defined
in subdivision (t) of Section 12926. Slide 49 Government Code
section 12926, subdivision (t) Undue hardship means an action
requiring significant difficulty or expense, when considered in
light of the following factors: Slide 50 Government Code section
12926, subdivision (t) (1) The nature and cost of the accommodation
needed. (2) The overall financial resources of the facilities
involved in the provision of the reasonable accommodations, the
number of persons employed at the facility, and the effect on
expenses and resources or the impact otherwise of these
accommodations upon the operation of the facility. (3) The overall
financial resources of the covered entity, the overall size of the
business of a covered entity with respect to the number of
employees, and the number, type, and location of its facilities.
(4) The type of operations, including the composition, structure,
and functions of the workforce of the entity. (5) The geographic
separateness, administrative, or fiscal relationship of the
facility or facilities. Slide 51 Assembly Judiciary Committee
Analysis COMMENTS: The author explains the reason for the bill as
follows: "AB 1964 would clarify that the FEHA definition of undue
hardship applies to the FEHA religious discrimination section.
Slide 52 Assembly Committee Analysis 1.Existing definition of undue
hardship is significant difficulty or expense; 2.Cal. Regulations
recognize that this definition applies to religion Slide 53
Government Code section 12940, subdivsion (l)(1) Religious belief
or observance, as used in this section, includes, but is not
limited to, observance of a Sabbath or other religious holy day or
days, reasonable time necessary for travel prior and subsequent to
a religious observance, and religious dress practice and religious
grooming practice as described in subdivision (p) of Section 12926.
Slide 54 Government Code section 12926 (p) Religious creed,
religion, religious observance, religious belief, and creed include
all aspects of religious belief, observance, and practice,
including religious dress and grooming practices. Religious dress
practice shall be construed broadly to include the wearing or
carrying of religious clothing, head or face coverings, jewelry,
artifacts, and any other item that is part of the observance by an
individual of his or her religious creed. Religious grooming
practice shall be construed broadly to include all forms of head,
facial, and body hair that are part of the observance by an
individual of his or her religious creed. Slide 55 Government Code
section 12940, subdivision(l) (2) An accommodation of an
individuals religious dress practice or religious grooming practice
is not reasonable if the accommodation requires segregation of the
individual from other employees or the public. Slide 56 Government
Code section 12940, subdivision (l)(3) An accommodation is not
required under this subdivision if it would result in a violation
of this part or any other law prohibiting discrimination or
protecting civil rights, including subdivision (b) of Section 51 of
the Civil Code and Section 11135 of this code. Slide 57 (l) (1) For
an employer to refuse to hire or employ a person or to discharge a
person from employment or to discriminate against a person in
compensation or in terms, conditions, or privileges of employment
because of a conflict between the persons 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, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another
time or by another person. Government Code section 12940,
subdivision (l)(1) Slide 58 Employer Burden demonstrate explored
any available reasonable alternative means of accommodating
religious belief Including, specifically, excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another
time or by another person. Government Code section 12940,
subdivision (l)(3) Slide 59 The Elimination Standard Where the
negotiations do not produce a proposal by the employer that would
eliminate the religious conflict, the employer must either accept
the employee's proposal or demonstrate that it would cause undue
hardship were it to do so. EEOC v. Townley Eng'g & Mfg. Co.,
859 F.2d 610, 615 (9th Cir. 1988), cert. denied, 489 U.S. 1077
(1989). Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1467 (9th
Cir. 1996) [emphasis added]. Slide 60 Pre-Employment Inquiries Can
the employer ask about open availability? Is open availability a
BFOQ? Applications routinely discriminate against those who observe
a Sabbath or participate in regular weekly services. This is a
developing area of the law. Slide 61 Summary and Conclusion: Dress
and appearance issues should be routinely accommodated, unless they
raise significant health or safety issues. Workers should not be
laterally transferred away from the general public due to their
religious displays/appearance. Scheduling accommodations should be
routinely accommodated, unless the cost of doing so becomes a
significant difficulty or expense. Slide 62 Thank You Coming to
Terms with Religion in the Workplace Phyllis W. Cheng, Esq.,
DirectorAnne Richardson, Esq. David Kadue, Esq., Partner Alan J.
Reinach, Esq. Executive Director Department of Fair Employment
& Housing Hadsell Stormer Richardson & Renick LLP Seyfarth
Shaw LLP Church State Council Orange County Bar Association Labor
& Employment Law Section August 12, 2013 | Newport Beach,
California