Supreme Court Opens The Door To More Religious Accommodation Claims

In a near-unanimous 7-page opinion, the U.S. Supreme Court held that employers need not have “actual knowledge” that an employee is requesting a modification of his position for religious purposes in order to be required to reasonably accommodate that request.  While the decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. was not terribly surprising, the Court’s broad consensus was.  Continue reading

Unvaccinated Workers: An Employer’s Rights And Obligations

Vaccines for children have been front-page news around the country after the breakout of measles at Disneyland.  Rightfully, the focus has been on children who are unvaccinated and the effect that it has on schools and places of public accommodation.  But, what about unvaccinated adults?  Can an employer require that its employees are vaccinated? Continue reading

Supreme Court To Decide Religious Accommodation Case

Last year, we reported on a decision from a federal judge in San Francisco granting summary judgment to the Equal Employment Opportunity Commission (EEOC) in a case brought on behalf of a former Abercrombie & Fitch employee who was fired for wearing a hijab (a Muslim headdress for women) at work.   The judge in that case found that Abercrombie’s “Look Policy” was invalid insofar as it prohibited the employee from wearing a hijab and that Abercrombie’s belief that her dress would affect store performance or brand image was an “unsubstantiated opinion” that was not supported by hard evidence. Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 34: Religious Dress And Appearance Requires Courts To Strike A Delicate Balance Between Religious Freedom And Business Needs

A recent survey by the Pew Research Center reports that 58% of Americans say that religion is very important in their lives and 76% of Americans say that prayer is an important part of their daily lives.  The survey also shows that an increasing number of Americans adhere to religions, like Islam, Hinduism, Buddhism and Mormonism, which were not nearly as prevalent 20 years ago.  To be sure, the increase in diversity of religions and the large number of Americans that closely observe religious practices has led to increased challenges for American employers, especially when those practices conflict with workplace requirements. Continue reading

Three Questions Employers Should Ask About Religious Accommodation Requests

A recent survey by the Pew Research Center reports that 58% of Americans say that religion is very important in their lives and 76% of Americans say that prayer is an important part of their daily lives.  The survey also shows that an increasing number of Americans adhere to religions, like Islam, Hinduism, Buddhism and Mormonism, which were not nearly as prevalent 20 years ago.  To be sure, the increase in diversity of religions and the large number of Americans that closely observe religious practices has led to increased challenges for American employers, especially when those practices conflict with workplace requirements. Continue reading

California Laws On Religious Accommodation Are Not Much Different Than Those In The EU

The more employee-friendly the California courts get, the more inevitable the comparisons are between California and European workplace laws. But, are we in the U.S. really that different to begin with? A recent decision from the European Court of Human Rights suggests not.

On January 15, 2013, the European Court of Human Rights issued a decision on religious accommodation which was remarkably similar to claims decided under the Title VII and California’s Fair Employment and Housing Act (“FEHA”), as well as recent California legislation on religious dress and grooming.  (Our recent blog post on the Workplace Religious Freedom Act of 2012 can be found here.)

The decision first analyzed the claims of two employees—a British Airways flight attendant and a geriatric nurse—who were precluded from wearing crosses around their necks at work. In the case of the flight attendant, the airline’s uniform policy initially provided that items worn for religious reasons must be covered by the employee’s uniform. In September 2006, the flight attendant was sent home without pay for openly wearing a cross until she agreed to comply with the uniform code. In October 2006, British Airways offered her administrative work without the obligation to wear a uniform or have customer contact, which she refused. The employee returned to work in February 2007 when British Airways changed its policy to permit the display of religious and charity symbols. The Court found that the flight attendant’s right to manifest her religious belief outweighed British Airways’ wish to project a certain corporate image, because other British Airways employees had previously been authorized to wear religious clothing such as turbans and hijabs without any negative impact on the company’s brand. That is precisely the same ruling that courts in the U.S. have consistently reached.

On the other hand, the Court ruled that the hospital had a more compelling reason to preclude the nurse from wearing a cross, as “the protection of health and safety on a hospital ward was inherently of much greater importance.” Again, courts in the U.S. have consistently found that where issues of health and safety are involved, an employer has much more leeway in imposing dress and grooming rules.

Finally, the Court found that employers were justified in terminating a marriage registrar and a sex therapist, who had refused to deal with gay individuals based on religious beliefs. Like courts in the U.S., the European court found that an employer’s enforcement of its non-discrimination policies outweighed an employee’s claim to religious freedom.

In sum, when it comes to issues surrounding religious accommodation and dress and grooming policies, European judicial bodies are facing the same thorny issues as California courts, often with very similar outcomes.

- Amy Durgan

Reasonable Accommodation: It’s Not Just for Some Religious Observances Anymore

On September 8, 2012, Governor Jerry Brown signed the Workplace Religious Freedom Act of 2012 into law. It amended the California Fair Employment and Housing Act to specifically state that religious clothing and hairstyles (grooming) qualify as a protected religious beliefs or observances and that segregating an employee from customers or the public is not a reasonable accommodation of an employee’s religious beliefs. Really? We needed a new legislation to tell us that?

The law also clarifies that FEHA’s “undue hardship” definition applies to FEHA’s religious discrimination provisions. When evaluating failure to accommodate allegations, California courts have applied the federal court’s “de minimis” definition to FEHA’s religious discrimination section instead of using FEHA’s “significant difficulty or expense” definition. See Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345 (1996). You probably already thought the federal definition was hard enough to meet.

Why did they pass this? The legislation came about in recognition of the 9.5 percent increase in 2011 in religious discrimination cases documented by the EEOC.
AB 1964 was sponsored by Assemblymember Mariko Yamada’s (D-Davis), who is running for re-election this year, and the Sikh Coalition and supported by AFSCME, AFL-CIO, Agudath Israel of California, ACLU of California, American Jewish Committee, Anti-Defamation League, California Employment Lawyers Association, California Immigrant Policy Center, California Nurses Association, Church State Council, Consumer Attorneys of California, Council on American-Islamic Relations – California Chapter, Hindu-American Foundation, Japanese American Citizens League, North American Religious Liberty Association – West.

- Kirstin Muller (Los Angeles)