The California Fair Employment & Housing Act (FEHA) prohibits discrimination against an employee or applicant because of, among other things, religious beliefs, religious observances, and religious practices. Unless based on a bona fide job qualification, a specific security regulation, or there is an undue hardship to the employer, employers also must reasonably accommodate an employee’s religious beliefs and practices in hiring and other terms of employment.
On September 8, 2012, Governor Jerry Brown signed Assembly Bill 1964, the Workplace Religious Freedom Act, amending the FEHA. AB 1964 adds “religious dress or grooming practices” to the list of religious considerations that a person cannot be discriminated against in employment. “Religious dress” includes the wearing of religious clothing, head or face coverings, jewelry, artifacts, and other items that are part of the observance of one’s religion. A “religious grooming practice” includes all forms of head, facial, and body hair that are part of one’s observance of a religious creed. Employers must construe these terms broadly.
Under the new law, employers cannot segregate an employee from coworkers and the public as a means of a religious accommodation. This means that employees should not be isolated to backrooms or other areas in the workplace simply because they wear religious attire or display religious grooming.
Before the passage of the Workplace Religious Freedom Act, courts have generally required the accommodation of religious dress as part of an obligation to not discriminate on the basis of religion. AB 1964’s addition to employment discrimination law explicitly requires and clarifies two key items. First, employers must reasonably accommodate religious dress, such as jewelry, turbans, and headscarves. For example, if the wearing of a turban presents a safety risk in a factory production line, the employer must ask if it is reasonable to provide protective clothing or equipment to allow the employee to still wear the head covering and work in a safe manner. Second, employers cannot take an adverse action, such as termination, because of an employee’s religious grooming practices or religious observances unless it has explored any alternative reasonable means of accommodation and still cannot accommodate the belief, practice or observance without incurring an undue hardship. Now that employee rights to accommodations for religious dress and grooming practices is expressly publicized and part of California’s FEHA, we expect more workers will visit Human Resources seeking an exception to a dress code or attendance policy based on their religious beliefs. We often see employees request:
Time off or excused absences for observing religious holidays or the Sabbath
Modification of an employer’s grooming standards to display beards, tattoos, or body piercings
Modification of a dress code or workplace safety provisions to wear certain head coverings, such as hijabs, Yarmulkes, turbans, or hairstyles like unshorn beards or untrimmed hair
The ability to proselytize, or discuss or display one’s religious beliefs at work in writing or orally
In considering a request for a religious accommodation, an employer should ask if the accommodation would cause “significant difficulty or expense” before concluding that the accommodation cannot be provided to the worker. The balancing of an employee’s religious rights with the employer’s ability to maintain a safe and productive workplace is tricky. It is often a judgment call on what may constitute a reasonable accommodation.
We strongly encourage employers to consult with an employment attorney before they refuse to employ someone who seeks a religious accommodation, deny a worker’s request to wear certain religious attire or grooming, or decline to provide an employee time off for religious observances. As the Equal Employment Opportunity Commission’s legal counsel recently pointed out, cases involving “religious garb and grooming are low-hanging fruit” for the Plaintiff’s bar or the Commission to prosecute and thus deserve careful consideration. The new law takes effect on January 1, 2013.