Employers, get to know the new religious accommodation rules

According to the Equal Employment Opportunity Commission, the number of religious discrimination claims increased from 2.1 percent of all claims in 1997 to 4.2 percent of all claims in 2011. Perhaps in response to these rising numbers, last month new amendments to the Fair Employment and Housing Act (FEHA) took effect. The goal of the amendments is to provide guidance and clarity to employers faced with religious accommodation requests. The amendments resulted from a bill co-sponsored by a religious group, the Sikh Coalition, along with members of other groups, such as the ACLU and the California chapter of the Council on American-Islamic Relations.

The amendments consist of three important components. First, the amendments define the term "undue hardship." Consistent with the previous version of the statute, employers need not accommodate religious accommodation requests if to do so would create an undue hardship. Until recently, employers and practitioners relied on the U.S. Supreme Court case, TWA v. Hardison, 432 U.S. 63 (1977), to define the term undue hardship. The TWA case held that a religious accommodation costing more than a "de minimis" amount is considered an undue hardship. Under the new amendments, the TWA de minimis standard is no longer applicable in California. The new amendments instead clarify that the definition of "undue hardship" in the religious accommodation context is identical to the definition used for years in FEHA disability accommodation cases. This means that employers must demonstrate "significant difficulty or expense" associated with the religious accommodation to rely on the undue hardship defense. Practically speaking, employers now must make every effort to provide religious accommodations. If it appears that a particular accommodation would be unduly expensive or difficult to provide, an employer should consider whether less expensive or less burdensome alternatives exist, rather than simply denying the request.

Second, the new amendments specifically include religious clothing, dress and grooming practices within the definition of "religious observances" protected by the FEHA. Previously, the FEHA definition of religious observances was oft interpreted as time off to observe religious or holy days (such as the Sabbath) or time off to travel for religious observance. The statute generally was not interpreted as applying to religious dress and grooming. Under the new amendments, if a dress and/or grooming habit is essential to a bona fide religious practice, employers must accommodate this practice unless the accommodation would cause undue hardship. Examples of such practices include wearing religious clothing, wearing head or face coverings, wearing jewelry, and religious grooming habits, such as long head, facial, or body hair. Under the new "significant difficulty or expense" standard mentioned above, employers may be required to accommodate employees' religious practices even if doing so would require a deviation from the company's dress code policy.

Third, and perhaps most noteworthy, employers are prohibited from relocating an employee who follows specific religious observances to a back office or away from public view, even if the transfer is a purely lateral change. The amendments make clear that to do so is not a reasonable religious accommodation in California. This part of the amendments comes in direct response to federal cases, which have previously held that moving an employee out of the public's view due to religious appearance was a permissible accommodation because a transfer that did not involve a demotion of any kind could not qualify as an adverse employment action. The FEHA amendments distinguish California law from the federal accommodation requirements, and employers must now suggest alternate reasonable accommodations in order to avoid liability.

In summary, the new amendments mandate that when confronted with a religious accommodation request, employers must demonstrate that they have "explored any available reasonable alternative means of accommodating the religious belief or observance." Employers are required to accommodate such requests and dress or grooming habits unless they can show the accommodation would sincerely affect the company's business operations. Employers must try, in good faith, to remove the conflict between the religious observance and the job.