Say Yes to the [Religious] Dress!
Christmas time raises the question for many employers: what is the role of religion in the workplace? Although questions such as whether a Christmas tree in the hall is appropriate or whether it should be a “holiday” or “Christmas” party can be challenging, there’s one question that the California legislature has recently made easier for employers: say yes to the [religious] dress!
Workplace Religious Freedom Act
In early 2013, the California Legislature passed AB 1964, or the Workplace Religious Freedom Act, which protects the ability to wear religious dress in the workplace. The bill was sponsored by the Sikh Coalition, the American Civil Liberties Union, the California Employment Lawyers Association, numerous unions, the Council on American-Islamic Relations, and the Church State Council. Assemblywoman Yamada, the bill’s author, wrote the bill in response to a rally she attended with the Middle Eastern, Muslim, and South Asian communities. When she asked what the most common issue was facing these communities, the response was overwhelming: religious discrimination in the workplace. As a result, AB 1964 was born.
There are three main changes to the law that both employees and employers should know: (1) employers must provide religious accommodations; (2) employers must accommodate religious dress and appearance in particular; and (3) employees cannot be segregated due to religious dress and appearance.
State Actors vs. Employers
Many employers think that under the Supreme Court’s decision in Employment Division v. Smith, employment policies that are facially neutral with respect to religious, do not require religious accommodations. 494 U.S. 872 (1990). Although it is true that state actors do not need to make exceptions from religiously neutral laws, employers are obligated under Title VII and FEHA to give a “reasonable accommodation” to religious beliefs and practices. Here, California employees and employers should note that California law is stronger than federal law. California requires more than a minimal accommodation, instead, an employer must accommodate unless it results in “significant difficulty or expense.” Cal. Gov’t Code § 12940(l)(1)
AB 1964 has changed FEHA to clarify that this broad accommodation standard applies not only to disability accommodation, but explicitly applies to religious accommodation. See Cal. Gov’t Code § 12940(l)(1), 12926(t). Additionally, AB 1964 expanded the definition of religious belief under subdivision (p) of Section 12926, to include specifically religious dress and grooming practices.
Finally, the most significant change is that AB 1964 now prohibits lateral transfers because of religious dress or grooming practices. Prior to 1964, employers placed many individuals with a beard, turban, or hijab (head scarf), in the back room because they thought customers might feel more “comfortable” with them out of sight. AB 1964 prohibits this practice and makes such transfers an adverse employment action. Furthermore, the statute specifically states that an accommodation is “not reasonable if the accommodation requires segregation of the individual from other employees or the public.” Cal. Gov’t Code § 12940(l)(2). As such, it is no longer acceptable for employers to segregate employees because of their religious dress or grooming practices.
Undue Hardship Exception
Overall, AB 1964 reverses the tide of employers resisting religious accommodations, instead, employers must accommodate religious dress and grooming practices, unless those practices present an undue hardship, such as health or safety issues. Given the high standard for showing undue hardship in California, however, if employers think that it may cause them undue hardship, they should consult with an HR professional to make this decision. The general trend should be that employees and employers discuss reasonable options for religious accommodations and absent significant difficulty or expense, employers should grant those accommodations. And in no case should an employer laterally transfer employees away from the public because of their religious grooming practices or dress.
All employers have to remember is: say yes to the [religious] dress!