September 6, 2018

Title VII of the Civil Rights Act of 1964 (“Title VII”) and California’s Fair Employment and Housing Act (“FEHA”) prohibit employment discrimination because of an individual’s religion, among other things.  [42 U.S.C. § 2000e-2; Gov. Code § 12940.] “Religion” or “religious creed,” as used in the FEHA, includes all aspects of religious belief, observance, and practice, including religious dress and grooming practices.  [Gov. Code § 12926(q).]

Besides forbidding discrimination, both statutes require employers to make reasonable accommodations for their employees’ religious beliefs, observances, and practices.  [42 U.S.C. § 2000e(j); Gov. Code § 12940(l).]  The FEHA is broader than Title VII in that it specifically forbids not just discrimination, but also harassment (a hostile work environment caused by verbal, physical, or mental abuse in the workplace) and retaliation.  [Gov. Code § 12940(j) – (l).]

FEHA also requires employers to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  [Gov. Code § 12940(k).]

Employers That Are Subject to FEHA
An employer who regularly employs five (5) or more persons (excluding religious associations and non-profit corporations) is subject to FEHA’s provisions against discrimination, harassment, and retaliation, with certain exceptions.  [Gov. Code § 12926(d).] The harassment provisions of Government Code § 12940(j), unlike the rest of the FEHA, apply to employers with as few as one employee or independent contractor.  [Gov. Code § 12940(j)(4)(A).]

Supervisors and Other Individuals Who Are Subject to FEHA’s Harassment Provisions
Supervisors:  A supervisor can be individually liable for harassment, but not for discrimination or retaliation.  [Reno v. Baird (1998) 18 Cal.4th 640 (discrimination by supervisor); Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 (retaliation by supervisor); Myers v. Trendwell Resorts, Inc. (2007) 148 Cal.App.4th 1403 (harassment by supervisor).] While a supervisor cannot be held liable for discrimination, a discriminatory act can be evidence that the supervisor held discriminatory animus against the employee, and is therefore evidence that the harassment was motivated by animus.

Holding a supervisor liable for harassment does not insulate the employer though: the employer is liable for harassing acts of its supervisor, because a supervisor acts as the employer’s agent.  [Gov. Code § 12940(j)(1).]

Co-workers:  An employee’s co-worker who is not a supervisor can be individually liable for harassment under Government Code section 12940(j)(3), regardless of whether the employer knew or should have known of the harassment or took corrective action.  The employer is also liable for the co-worker’s act if the employer knew, or should have known, of the harassment but did not take immediate and appropriate corrective action.

Non-employees:  “Any other person” can be individually liable for harassment under Government Code § 12940(j)(1).  Employers are only liable for a non-employee’s harassment of employees if it is sexual harassment and the employer knew, or should have known, of it but did not take immediate, appropriate corrective action.

Employees Protected by FEHA
The FEHA protects employees (job applicants and temporary, permanent, and former employees) from unlawful discrimination, harassment, and retaliation.  [Gov. Code §§ 12940(a) and (h).] Independent contractors are protected from harassment only, under Government Code section 12940(j)(1).

The employer need not know the employee’s actual religion in order to discriminate against or harass the employee.  Even a false belief about the employee’s religion can be sufficient for a religious discrimination claim: an “employer may not make an applicant’s religious practices, confirmed or otherwise, a factor in employment decisions.” [EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 575 U.S. ___; 135 S.Ct. 2028, 2032 – 2033.]

In EEOC, supra, a job applicant wore a headscarf to her job interview.  She was not hired because the employer suspected she was a Muslim and wore the headscarf due to her religious faith.  The employer violated Title VII.

Title VII claims can also be based on “reverse religious discrimination,” where the employer discriminates against employees who do not adhere to the employer’s religion. [See Noyes v. Kelly Services (9^th Cir. 2007) 488 F.3d 1163, 1168 – 1169.]

What Qualifies as a Religion?
Under the FEHA, religion includes all aspects of religious belief, observance, and practice.  [Gov. Code §12926(q).] So, what qualifies as a religion? A three-part test defines a “religious creed”:

1. A religion addresses fundamental and ultimate questions having to do with deep and imponderable matters (for example, the meaning and purpose of life, theories of mankind’s nature or its place in the universe, matters of human life and death, or the exercise of faith);
2. A religion is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and
3. A religion can be recognized by the presence of certain formal and external signs.

[Friedman v. Southern Calif. Permanente Med. Group (2002) 102 Cal.App.4th 39, 69.] Both religious belief and atheism are protected by Title VII.  [Young v. Southwestern Sav. & Loan Ass’n (5^th Cir. 1975) 509 F.2d 140, 143; Reed v. Great Lakes Co. (7^th Cir. 2003) 330 F.3d 931, 934 (“religion” includes antipathy to religion).]

Religious Discrimination Defined
There are two ways by which employers can commit religious discrimination under the FEHA:

Disparate Treatment:  One form of religious discrimination is disparate treatment of an individual by the employer, as set out in Government Code section 12940(a):

“For an employer, because of the . . . religious creed . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

Under Title VII, an employer’s unlawful discrimination by adverse treatment is shown where:

1. the employee is involved in a protected activity (here, a religion);
2. the employee suffers an adverse employment action; and
3. a causal link exists between the two.  For example, proof that employees of other religious beliefs were treated more favorably in regard to an adverse employment action can give rise to an inference of discrimination.

[Bodett v. CoxCom, Inc. (9^th Cir. 2004) 366 F.3d 736, 743.]

Conflicting Job Requirement:  It is also religious discrimination under FEHA for an employer to set a job requirement that, even if neutral on its face, conflicts with a religious observance or practice.  See discussion below.

Job Requirements Must Not Conflict With Religious Observances or Practice
An employment requirement can show religious discrimination under the FEHA.  The employee would have to show the following:

1. The employee had a bona fide religious belief;
2. The employer was aware of that belief;
3. That belief conflicted with an employment requirement; and
4. That belief made it impossible to perform the job.

[Friedman v. Southern Calif. Permanente Med. Group, supra, 102 Cal.App.4th at 45.] Therefore, a religious discrimination claim can be supported by evidence of an adverse employment action taken because of an employee’s inability to fulfill a job requirement due to a religious belief.

In Lawrence v. Mars, Inc., the fact that an employer scheduled a significant business event on a religious holiday was insufficient to show religious discrimination, unless nonattendance would disadvantage the employee (i.e. unless there was an adverse employment action). [Lawrence v. Mars, Inc. (4^th Cir. 1992) 955 F.2d 902, 906.]

Employer’s Burden of Proof
Once an employee meets his or her burden of proof as to religious discrimination, it is the employer’s turn to show either:

1. It attempted reasonably to accommodate the employee’s religious belief; or
2. Any accommodation of the employee’s needs would result in an undue hardship.

[Gov. Code § 12940(l)(1); Balint v. Carson City, Nevada (9^th Cir. 1999) 180 F.3d 1047, 1050.]

Accommodation may include either:

1. Keeping the employee in his or her current position but changing the working conditions; or
2. Letting the employee transfer to another reasonably comparable position where conflicts are less likely to arise.

[Bruff v. North Miss. Health Services, Inc. (5^th Cir. 2001) 244 F.3d 495, 500.]

In California, an employer must accommodate not just the employee’s religious belief, but also religious observance, if reasonably possible without undue hardship.  [Gov. Code § 12940(l).] An employer violated FEHA by refusing to allow an employee time off to attend a Jehovah’s Witness convention without initiating a good faith effort to accommodate the employee.  [California Fair Employment & Housing v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1016-1017.] On the other hand, an employer was not required to accommodate an employee who took time off for a religious pilgrimage to Yugoslavia, because no evidence showed that the time she chose to go was part of her religious belief.  [Tiano v. Dillard Dept. Stores, Inc. (9^th Cir. 1998) 139 F.3d 679, 683.]

An employer does not have to provide a reasonable accommodation if it can prove that it would be an undue hardship.  Government Code section 12926(u) sets forth a number of factors to determine whether a reasonable accommodation would be an “undue hardship,” meaning an action requiring significant difficulty or expense, when considered in light of the following:

1. The nature and cost of the accommodation needed;
2. The overall financial resources of the facility, the number of persons employed there, and the impact on operation of the facility;
3. The employer’s overall financial resources and overall size of business;
4. The type of operations; and
5. The geographic separateness, or administrative or fiscal relationship of the facility.

The burden of proving an undue hardship is on the employer.  [Bhatia v. Chevron U.S.A., Inc. (9^th Cir. 1984) 734 F.2d 1382, 1383.] Having to violate federal or state law, in order to accommodate an employee, would be an undue hardship.  For example, an employer was not required to accommodate a Sikh employee’s wearing a dagger with a 3-inch blade (though it is a Sikh religious requirement) because federal law prohibits blades of that length in federal buildings.  [Tagore v. United States (5^th Cir. 2013) 735 F.3d 324, 329 – 330.]

The FEHA provides detailed procedures and remedies to deter and redress unlawful employment practices.  Be aware that you have only one year from the time of the discriminatory action to file a complaint.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.　This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.