The California Civil Rights Department recently posted a two-page fact sheet concisely addressing religious discrimination and accommodations at work under California law. The document breaks no new legal ground, but it does spotlight principles all employers should apply and gives useful examples.
Here are five takeaways.
Broad protection against religious discrimination
Protected beliefs and practices are not limited to those of widely recognized religions. Protection extends to “beliefs, observances, or practices that an employee sincerely holds and are parallel to traditionally recognized religions.”
And the law does not only protect employees. A claim of religious discrimination or harassment in employment also may be asserted by an applicant, intern, or volunteer. The law also “protects people from discrimination and harassment based on their association with people who have, or are perceived to have, a religious creed, like a friend, family member, or colleague.”
The coverage is broad, but not unlimited. For reasons rooted in the U.S. and California Constitutions, California’s Fair Employment & Housing Act expressly excludes from the definition of a covered “employer” a non-profit religious institution.
Discriminatory job interviews, applications
The law prohibits employers from asking applicants about their religious beliefs directly and indirectly.
Questions about the times and dates an employee is available for work should be framed so the applicant is not forced to disclose their religious practices. The guidance recommends framing the question like this: “Other than time off for reasons related to your religion, are there days or times when you are unavailable to work?”
The guidance says technology may be used to exclude applicants based on their availability for work, “but only if it is job-related, necessary for the business, and the technology allows applicants to request accommodations based on their religious beliefs.”
Examples of discrimination
An employer may not engage in religious discrimination or harassment or retaliate against a protected individual for asserting their right to protection against discrimination or harassment. The guidance gives five examples of prohibited treatment, including:
Denying a promotion to a qualified employee who is a member of the Church of Jesus Christ of Latter-Day Saints based on the stereotype they are likely to have large families and request parental leave;
Making loud noises to mock and disrupt an employee engaged in silent prayer; and
Barring a Jewish person from wearing a Star of David necklace, while allowing other jewelry.
Broad duty of reasonable accommodation
An employer must accommodate an employee’s religious belief or practice unless doing so would cause an undue hardship. The guidance identifies several potential accommodations, including:
Scheduling a Muslim applicant’s job interview that avoids a conflict with their prayer time;
Allowing a Seventh-day Adventist to observe their holy day by scheduling Saturday as their day off; and
Allowing an atheist employee to join staff meetings late, so they don’t have to be present during an opening prayer.
Undue hardship exception narrow, hard to prove
While religion and an employer’s duty to accommodate religion are broadly framed, an employer’s right to deny an accommodation based on undue hardship is relatively narrow. Factors in determining whether accommodation would be an undue hardship to an employer include workspace size, the type of the business operation, and the nature and cost of the requested accommodation in relation to the employer’s resources.
Nonetheless, “employers who show that an accommodation creates an undue hardship must continue communicating with the job applicant or employee to explore whether there are other accommodations that meet the employee’s needs without an undue hardship for the employer.”
The guidance further admonishes employers not to delay a request for religious accommodations unduly, hoping the employee will seek work elsewhere. “If a person experiences unfair treatment after requesting a religious accommodation, this may be unlawful retaliation, regardless of whether the accommodation is granted or denied.”
Conscientious employers will check this fact sheet when faced with questions of religion in the workplace.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.