Slide 1

Slide 2 Oh, God! Coming to Terms with Religion in the Workplace Phyllis W. Cheng, Esq., DirectorAnne Richardson, Esq. David Kadue, Esq., Partner Alan J. Reinach, Esq. Executive Director Department of Fair Employment & Housing Hadsell Stormer Richardson & Renick LLP Seyfarth Shaw LLP Church State Council Orange County Bar Association Labor & Employment Law Section August 12, 2013 | Newport Beach, California Slide 3 Overview Part I: DFEHs Authority and Enforcement of Religious Discrimination and Harassment. Part II: Heaven Cant Wait: Religious Discrimination in the Here and Now Part III: Reasonable Accommodation in Dress, Grooming and Appearance Part IV: Religious Accommodation in California and AB 1964: To accommodate or not? No longer the question 2 Slide 4 Part I DFEHs Authority and Enforcement of Religious Discrimination 3 Slide 5 Introduction The Department of Fair Employment and Housing (DFEH) is Californias civil rights agency. Mission: The Department of Fair Employment and Housings mission is to protect Californians from employment, housing & public accommodation discrimination and hate violence. The DFEH receives, investigates, conciliates, mediates, and prosecutes complaints alleging discrimination in housing throughout the State of California. 4 Slide 6 DFEH Jurisdiction Fair Employment and Housing Act (Gov. Code, 12900 et seq.). Unruh Civil Rights Act (Civ. Code, 51 et seq.). Disabled Persons Act (Civ. Code, 54 et seq.). Ralph Civil Rights Act (Civ. Code, 51.7). 5 Slide 7 BASIC PROTECTIONS UNDER THE FEHA Discrimination relating to terms and conditions of employment. Discrimination related to job training, classification or assignment. Interference with other employment opportunities. Harassment. Retaliation. Discriminatory advertising. 6 Slide 8 7 Slide 9 DFEH Employment Flowchart 8 Slide 10 9 Slide 11 10 Slide 12 AB 1964 Religious Discrimination Amendments to the FEHA Effective January 1, 2013, the FEHA is amended to : Clarify that an employers obligation to accommodate employees religious beliefs or observances includes accommodating religious dress and grooming practices, as defined; (Gov. Code, 12926, subd. (p).) Clarify that the standard for determining whether a religious accommodation poses an undue hardship is the same standard used for evaluating disability accommodations; (Gov. Code, 12926, subd. (t), 12940, subd. (l).) State expressly that an accommodation is not reasonable if it requires segregation of an employee from customers or the general public. (Gov. Code, 12940, subd. (k)(2).) Revised FEHA religious discrimination regulations to come. 11 Slide 13 Exemptions Discrimination by religious organizations or ministerial exception. (Gov. Code, 12962, subd. (d).) Religious corporation; Not organized for private profit. However, hospitals and health care facilities open to the public are subject to the FEHA even if owned by or affiliated with religious entities. (Gov. Code, 12926.2.) 12 Slide 14 REMEDIES Lost salary or wages. Transfer. Purge of personnel file. Emotional distress. Attorneys fees. Punitive damages. Court-ordered policy changes and training. 13 Slide 15 Part II Heaven Cant Wait: Religious Discrimination in the Here and Now 14 Slide 16 Religion claims: a tiny mustard seed Relatively rare, but growing: FY 1997: just 1709 EEOC charges (2.1% of total). FY 2011: 4151 (now 4.2% of total). Most cases involve requests for religious accommodation, where demands of faith conflict with employer policies on scheduling, dress, grooming, and other matters. Slide 17 Statutory Basis for Protections Title VII forbids discrimination because of race, color, gender, national origin, and religion, circularly defined to include all aspects of religious belief, observance, and practice. Employers must reasonably accommodate sincere religious practices, unless doing so would create undue hardship. duty reflects basic discrimination law (per EEOC and some state courts, by a version of adverse impact theory). accommodation duty made express in 1972 Title VII amendments. Slide 18 California Law Fair Employment and Housing Act (Cal. Govt Code 12900 et seq.). FEHA defines employer to include public employers and prohibits employment practices based on religious creed, including (per Govt Code section 12940(l )): a conflict between the person's religious belief or observance and any employment requirement . unless the employer demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer . California Workplace Religious Freedom Act, eff. 1/1/13 (of which more later). 17 Slide 19 Courts follow two-part framework to analyze religious accommodation claims. T iano v. Dillard Dept Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). Employee makes out prima facie case: (1) bona fide religious practice conflicts with employment duty (cf. Tiano (attending particular pilgrimage not dictated by beliefs)); (2) employer was informed of the conflict; and (3) employer imposed discriminatory treatment because of inability to fulfill job requirements. Franks v. Nebraska, 2012 U.S. Dist. LEXIS 2829 (D. Neb. Jan. 10, 2012) (rejecting claim of correctional officer whose pocket-sized Bible was seized as contraband, as no discipline had ever occurred). Religious Accommodation Slide 20 Religious AccommodationBurdens of Proof Employee must show belief or practice was sincere (not fake); truly religious (not mere philosophy); and truly required (not mere preference). Then employer must show it (i) engaged in good faith to explore accommodate religious practices or (ii) could not reasonably accommodate without incurring undue hardship. EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989). Slide 21 What Counts as Religion? Regulatory definitions of religion: Title VII: Moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. 29 C.F.R. 1605.1. FEHA: Any traditionally recognized religion as well as beliefs, observations, or practices that an individual sincerely holds and that occupy in the individuals life a place of importance parallel to that of traditionally recognized religions. Cal. Code Regs. tit. 2, 7293.1. Slide 22 What Qualifies as Religion? Nontraditional faiths can qualify. World Church of the Creator (preaching white supremacy): Peterson v. Wilmur Communications, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002). Wiccan: Benz v. Rogers Memorial Hosp., Inc., 2006 WL 314407 (E.D. Wis. 2006) (assuming Wiccan qualifies as Title VII religion). Slide 23 What Qualifies as Religion? Some well-established belief systems might not qualify: Veganism: Friedman v. SCPMG, 102 Cal. App. 4th 39 (2002) (veganism is personal philosophy, not religious creed, as it does not address purpose of life, derive from ultimate faith, or bear external signs of religious organization). Ku Klux Klan membership: Bellamy v. Masons Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (klan not a religious organization even if its meetings feature "religious pomp and ceremony). Slide 24 Sincerity Requirement One need not be a saint or a scholar to claim the faith: [E]mployee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy. EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988). Catholic was sincere about attending Sunday mass even if she could not identify all of the elements of a Catholic mass Pozo v. J & J Hotel Co., 2007 WL 1376403 18 (S.D. N.Y. 2007). Slide 25 Sincerity Requirement Employers can inquire into sincerity before deciding whether to grant religious accommodation: Bind v. City of New York, 2011 U.S. Dist. LEXIS 11369 (S.D.N.Y. Sept. 30, 2011) (employer could see if employee really attended synagogue services she cited as reason to resist schedule change) EEOC Compliance Manual: If accommodation request gives insufficient information, employer with good-faith doubt can make limited inquiry into whether the request reflects a religious belief or practice that requires accommodation. Slide 26 Reasonable Accommodation Religious observances conflicting with work include observing Sabbath; praying or other religious activity during work hours; missing work to mourn for deceased relative; refusing to submit to medical exam; refusing to join union or pay union dues; adopting certain hair style or beard; wearing certain clothing or head coverings; and displaying certain jewelry, objects, or tattoos. Slide 27 Reasonable Accommodation Notice Employees need not comprehensively explain how and why religion needs accommodation. California Fair Employment & Housing Com'n v. Gemini, 122 Cal. App. 4th 1004 (2004). Employee objecting to drug screening in form of saliva test instead of blood or hair or urine test (based on tenet of Santeria religion) gave sufficient notice of religious conflict and proposed accommodation. EEOC v. GKN Driveline N. Am., 2010 U.S. Dist. LEXIS 129815 (M.D.N.C. Dec. 8, 2010). Slide 28 Reasonable Accommodation A reasonable accommodation eliminates the conflict between employment requirements and religious practices. Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993). Workplace adjustments allowing religious practice include flex scheduling, voluntary job swaps, reassignments, transfers. Employers need not provide the preferred accommodation. Ansonia Board of Ed. v. Philbrook, 479 U.S. 60, 68 (1986). EEOC: employers must offer the option that least disadvantages the individual as to employment opportunities. 29 C.F.R. 1605.2(c)(2)(ii) (disapproved of in Ansonia, fn. 6). Slide 29 Undue Hardship Employers must resolve conflicts between employee religious practice and company policy, unless modifying policy would involve > trifling or minimal cost. Accommodations cause undue hardship if they cost something beyond inconvenience (efficiency losses, economic costs, risks to health or safety). EEOC considers as only de minimis such costs as. infrequent payment of premium wages as stop-gap measure. costs to administer job swaps and attendance records. Slide 30 Undue Hardship Whats > De Minimis? EEOC examples: more than ordinary administrative costs. diminishing efficiency in other jobs. infringing on co-workers rights or benefits, or causing them to carry employees share of hazardous or burdensome work. impairing workplace safety. causing conflict with other laws. 29 Slide 31 Undue Hardship Cf. ADA definition, which is much harder to meet. Title VII case led to different interpretation of same language. TWA v. Hardison, 432 U.S. 63 (1977). airline machinist in 24/7 operation was fired for refusing to work on his Sabbath. anything > de minimis cost incurred in giving Saturdays off would be an undue hardship. Proposed accommodations in Hardison creating undue hardship: (1) four-day workweek, (2) regular premium pay for replacements, (3) job swaps trumping seniority rights. Slide 32 Undue Hardship Why de minimis? Constitutional concerns? Not expressly stated in TWA v. Hardison majority opinion, but noted in Justice Marshalls dissent. Thornton v. Caldor, Inc., 472 U.S. 703 (1985). Connecticut statute entitling employees not to work on Sabbath was unconstitutional establishment of religion, exalting religious observance over all secular interests. Concurring opinion: Title VII is constitutional because (i) it requires reasonable rather than absolute accommodation and (ii) it extends to all religious practices rather than only the Sabbath observance, making it an anti-discrimination law rather than an endorsement of particular religious practice Slide 33 Sample Reasonable Accommodation Cases Proselytizing often need not be accommodated: Employer need not allow employee to discuss religion with clients, display religious items in cubicle, and use conference room for prayer meetings. Berry v. Dept of Social Services, 447 F.3d 642 (9th Cir. 2006). Employer need not permit evangelical employee to post messages castigating gay co-workers, and need not exclude sexual orientation from workplace diversity programs. Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004). Employer need not allow employee to wear anti-abortion button displaying picture of fetus. Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995). Slide 34 Sabbatarian Accommodation Baker v. Home Depot, 445 F.3d 541 (2d Cir. 2006). Home Depot store manager did not honor Bakers request for Sundays off to celebrate Sabbath, when manager simply gave time off for Sunday-morning church attendance, while requiring work on Sunday afternoons or evenings. The shift change, while it enabled Baker to attend church, did not accommodate his religious requirement to abstain from work totally on Sundays. 33 Slide 35 Sabbatarian Accommodation EEOC v. Texas Hydraulics, 2008 U.S. Dist. LEXIS 40482 (E.D. Tenn. April 16, 2008) Employer must show it attempted to accommodate the employees religious beliefs. Proposed accommodation to allow plaintiff to ask co-workers to work Sabbath shifts was insufficient, as plaintiff considered it a sin to ask others to work for him. Employer could have looked outside plaintiffs department for workers to cover his Sabbath shifts. 34 Slide 36 Sabbatarian Accommodation EEOC v. Rent-A-Center, Inc. (D.D.C. 2013) Rent-A-Center, Inc. (RAC) had no duty to accommodate store manager who requested Saturdays off to practice his faith as a Seventh Day Adventist. Requiring RAC to give every Saturday off would create undue hardship because (i) store manager position was critically important, (ii) Saturdays were central to RACs weekly cycle, and (iii) RAC had policy requiring all store managers to work on Saturdays. 35 Slide 37 Part III Reasonable Accommodation in Dress, Grooming and Appearance 36 Slide 38 Dress/Grooming Accommodation Common Issues Hijab Khimar Turban Yarmulke Beard Piercings Tattoos 37 Slide 39 Dress Practices Accommodation Safety Issues EEOC v. The Geo Group, 616 F.3d 265 (3d Cir. 2010) (security concerns for prison company meant that allowing khimar traditional Muslim headcovering as exception to no-headgear policy would create undue hardship, in that khimars could be used to smuggle contraband and as a weapon to attack a prison employee). But see Khatib v. County of Orange, 639 F.3d 898 (9 th Cir. 2011) (Gould, J, concurring) (In case arising under RLUIPA, shame and distress felt by a Muslim woman detainee who must appear without her hijab under Orange County Jail policy is precisely the kind of mischief RLUIPA was intended to remedy; case subsequently settled with change in policy). Finnie v. Mississippi, 2012 U.S. Dist. LEXIS 6679 (N.D. Miss. Jan. 17, 2012) (upholding firing of Pentecostal detention officer whose faith forbade her to wear pants; permitting skirts as exception to pants- only policy would pose risks to safety and security, creating undue hardship). 38 Slide 40 Dress Practices Accommodation Look Policies and Dress Codes EEOC v. Abercrombie & Fitch Stores, 798 F. Supp. 2d 1272 (D. Okl. 2011) (granting summary judgment to EEOC where store, in denying sales model job because applicant wore a Muslim headscarf, did not show actual undue hardship, as opposed to mere speculation that head scarf would affect stores brand image and sales volume). EEOC v. Abercrombie & Fitch Stores, 2013 U.S. Dist. LEXIS 51905 (N.D. Cal. April 9, 2013) (granting partial summary judgment to EEOC on undue hardship defense given the lack of evidence of the degree to which Look Policy compliance affects store performance or brand image). Goldman v. Weinberger, 475 U.S. 503 (1986) (Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, "there is simply not the same [individual] autonomy as there is in the larger civilian community.") Congress responded to Goldman by prescribing that "a member of the armed forces may wear an item of religious apparel while wearing the uniform," unless "the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative." 10 U.S.C. 774(a)-(b). Goldman v. Weinberger, 475 U.S. 503 (1986)Free Exercise Clause10 U.S.C. 774(a)-(b) 39 Slide 41 Dress Practices Accommodation Piercings, Jewelry and Tattoos Cloutier v. Costco Wholesale, 390 F.3d 126 (1st Cir. 2004). member of Church of Body Modification refused to cover multiple facial piercings, in violation of personal appearance policy. proposed accommodation exemption from appearance policy would pose undue hardship on Costco because: Costco had legitimate interest in maintaining professional image. losing control of public image could cause economic costs. EEOC v. Red Robin Gourmet, 2005 U.S. Dist. LEXIS 36219 (W.D. Wash. 2005) Employee who practiced Kemeticism, a religion with roots in ancient Egypt or Kemet, refused to cover his tattoos which encircled his wrists. Court denies summary judgment to the employer because there was no evidence that any customers complained about his tattoos, or any other employees tattoos; no evidence that visible tattoos are inconsistent with a family-oriented and kid-friendly image; the tattoos were written in ancient Coptic; ancient Coptic unlikely to offend customers. 40 Slide 42 Grooming Practices Accommodation Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7 (D. Mass. 2006) (summary judgment for employer who enforced grooming policy by removing Rastafarian Jiffy Lube technician from customer contact because he refused to cut his hair; granting him an exemption would have created undue hardship by adversely affecting companys public image). Stanley v. State of California, 2012 U.S. Dist. LEXIS 178946 (E.D. Cal. Dec. 18, 2012) (rejecting accommodation claim by Rastafarian correction officer, because employer did permit him to wear a neat facial beard). Bahtia v. Chevron U.S.A., 734 F.2d 1382 (9th Cir. 1984) (employer need not permit Sikh to wear beard where company policy reflected need to wear respirator with gas-tight face seal because of potential exposure to toxic gases). But see Booth v. Maryland, 327 F.3d 377 (4 th Cir. 2006) (summary judgment reversed on Rastafarian correctional officers claim of violation of First Amendment freedom of religion where employer allowed accommodations to other religions but did not allow him to wear modified dreadlocks). 41 Slide 43 Defenses That Dont Cut the Mustard If we allow one person to do it, then we will have to let everybody do it. Rejected by EEOC v. Alamo Rent-a-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006) Employees would grumble about a particular accommodation. Rejected by Opuku-Boateng v. State of California, 95 F.3d 1461 (9 th Cir. 1996) Spiritual hardship to a company that mandates a nondenominational devotional services Rejected by EEOC v. Townley Engineering & Mfg Co., 859 F.2d 610 (9 th Cit. 1989) Our customers dont feel comfortable with..... Rejected in BFOQ context by numerous decisions. See, e.g., Lam v. University of Hawaii, 40 F.3d 1551, 1560 fn. 13 (9 th Cir. 1995). 42 Slide 44 New Frontiers Religion at Work California Workplace Religious Freedom Act AB 1964, amending FEHA defines undue hardship a la ADA, taking many factors into account (rejects TWA v. Hardison standard) says religious observance includes dress practices (religious clothing, head or face coverings, jewelry, artifacts, etc.) and grooming practices (all forms of head, facial, and body hair) deems unreasonable any accommodation that would segregate employees but requires no accommodation that would cause violation of any other civil rights law 43 Slide 45 Part IV Religious Accommodation in California and AB 1964: To accommodate or not? No longer the question. 44 Slide 46 Workplace Religious Freedom Act 1.Employers must provide religious accommodations; 2.Religious dress and appearance must be accommodated; 3.Workers cant be segregated due to religious dress and appearance. 45 Slide 47 Employers Must Provide Religious Accommodations 46 1.Supreme Courts peyote case ruling does not apply. 2. FEHA defines undue hardship as significant difficulty or expense. Slide 48 Government Code section 12940, subdivision (l)(1) unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (t) of Section 12926. Slide 49 Government Code section 12926, subdivision (t) Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: Slide 50 Government Code section 12926, subdivision (t) (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness, administrative, or fiscal relationship of the facility or facilities. Slide 51 Assembly Judiciary Committee Analysis COMMENTS: The author explains the reason for the bill as follows: "AB 1964 would clarify that the FEHA definition of undue hardship applies to the FEHA religious discrimination section. Slide 52 Assembly Committee Analysis 1.Existing definition of undue hardship is significant difficulty or expense; 2.Cal. Regulations recognize that this definition applies to religion Slide 53 Government Code section 12940, subdivsion (l)(1) Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (p) of Section 12926. Slide 54 Government Code section 12926 (p) Religious creed, religion, religious observance, religious belief, and creed include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. Religious dress practice shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Religious grooming practice shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. Slide 55 Government Code section 12940, subdivision(l) (2) An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. Slide 56 Government Code section 12940, subdivision (l)(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code. Slide 57 (l) (1) For an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person. Government Code section 12940, subdivision (l)(1) Slide 58 Employer Burden demonstrate explored any available reasonable alternative means of accommodating religious belief Including, specifically, excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person. Government Code section 12940, subdivision (l)(3) Slide 59 The Elimination Standard Where the negotiations do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so. EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989). Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1467 (9th Cir. 1996) [emphasis added]. Slide 60 Pre-Employment Inquiries Can the employer ask about open availability? Is open availability a BFOQ? Applications routinely discriminate against those who observe a Sabbath or participate in regular weekly services. This is a developing area of the law. Slide 61 Summary and Conclusion: Dress and appearance issues should be routinely accommodated, unless they raise significant health or safety issues. Workers should not be laterally transferred away from the general public due to their religious displays/appearance. Scheduling accommodations should be routinely accommodated, unless the cost of doing so becomes a significant difficulty or expense. Slide 62 Thank You Coming to Terms with Religion in the Workplace Phyllis W. Cheng, Esq., DirectorAnne Richardson, Esq. David Kadue, Esq., Partner Alan J. Reinach, Esq. Executive Director Department of Fair Employment & Housing Hadsell Stormer Richardson & Renick LLP Seyfarth Shaw LLP Church State Council Orange County Bar Association Labor & Employment Law Section August 12, 2013 | Newport Beach, California