CA Workplace Religious Freedom Act

The CA Workplace Religious Freedom Act: Expanding Religious Protection

California took the lead in expanding religious protections for workers when Governor Jerry Brown signed into law the Workplace Religious Freedom Act of 2012 (WRFA), which amends the Fair Employment and Housing Act (FEHA). The amendment significantly expands employee rights with regard to religious garb and grooming in the workplace. First, it revises the FEHA definitions of “religion,” “religious observance” and “religious belief” to include religious dress and grooming practices. Second, it expands protected activity to include the wearing of religious clothing and other religious articles, and maintenance of grooming in accordance with the precepts of a religion. Third, it creates a higher bar for California employers to demonstrate undue hardship when refusing to accommodate an employee's request to be excused from company policy for religious reasons.

The WRFA is notable in that it specifically defines, protects, and broadly construes an employee's “religious dress practice” and “religious grooming practice.” Religious dress practice includes “wearing or carrying of religious clothing, head or face covering, jewelry, artifacts, and any other item that is part of the observance by an individual as his or her religious creed.” This may include head coverings, body piercings, and clothing. Religious grooming practice includes “all forms of head, facial or other body hair that are part of observing an individual's religious creed.” These definitions explicitly protect employees whose religion requires that they not cut their hair (Sikh), trim their beard (Judaism), forego head coverings (Islam), or other outward demonstrations of their faith.

The new California law is a major departure from federal law, and from prior California law, in that an employer cannot deny a request for accommodation if it is only a “de minimis” or even moderate hardship for the employer. Under Title VII of the Civil Rights Act, employers must reasonably accommodate the sincerely held religious practices of employees, unless doing so would create undue hardship for the employer. In other words, the employer may deny a religious accommodation request if the accommodation creates more than a de minimus cost or burden on business operations. Under the WRFA, the accommodation must be granted unless to do so would be substantially burdensome. From a legal and practical perspective, it will be much harder for an employer in California to justify denying a religious accommodation unless it has a real and significant impact on the business.

Harder to Prove Undue Hardship Based on Public Image

Refusal to make religious accommodation exceptions to dress codes based purely on a company's desire to create a particular public image is becoming harder to defend and will likely be entirely unavailable in California due to the provisions of the WRFA. Recent cases bear out this trend. In EEOC v. Alamo Rent a Car, 432 F.Supp.2d 1006 (D. Ariz. 2006), the federal district court in Arizona found that Alamo Rent a Car had not established even a de minimus burden when it would not allow an employee to wear a head covering while attending to customers at the rental counter. Although Alamo argued that any deviation from its carefully cultivated image would be a burden, it could not establish that it would cost the company any money, negatively affect the impression the employee would make on customers, or negatively impact customer expectation.

In EEOC v. Abercrombie and Fitch, 798 F.Supp.2d 1272 (D. Okl. 2011), the district court in Oklahoma ruled that Abercrombie and Fitch had failed to establish that allowing a sales associate to wear a head covering would be an undue hardship even though the retailer submitted evidence that its primary advertising is the in-store experience with its sales representatives (called “models”) and the look and feel of the store. The judge rejected Abercrombie and Fitch's expert testimony and the testimony of its executives that allowing a sales representative to wear a head covering would negatively impact the brand, sales and compliance. The judge pointed out that Abercrombie and Fitch had granted exceptions to the dress code for religious reasons on a number of occasions, but had never conducted any studies, nor could it cite any specific examples where deviation from the dress code resulted in decreased sales.

These cases show that courts are increasingly unwilling to find undue burden on the basis of public image. The court will not simply accept the employer's word that making an exception to the dress or grooming policy would be a substantial burden. As a practical matter, most employers will not have the resources to gather empirical data to show that allowing a religious dress or grooming accommodation negatively impacts its sales or its public image. As an evidentiary matter, employers will probably not be able to show undue burden where the employee has already been working without incident for some time and there have been no consumer complaints or decrease in sales.

Legitimate Safety Concerns Still a Viable Defense

The WRFA, consistent with federal law, will still allow an employer to deny requests for religious accommodation due to a legitimate safety concern, so long as the accommodation is a substantial burden. Where an employee is working around moving equipment, it may be a substantial undue hardship on the employer (or, in fact, impossible) to rearrange its production facilities to accommodate the wearing of certain clothing, jewelry, or facial hair. In Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984), the federal appeals court in California sided with the employer that refused to allow a machinist to maintain facial hair. A beard would have interfered with the employee's ability to wear a respirator as required by California occupational safety standards, and would have required the company to revamp its system of assigning work.

Dress codes have been upheld for correctional facilities on the basis of legitimate safety concerns. In Finnie v. Lee County, —F.Supp.2d—, 2012 WL 124587 (N.D. Miss. Jan. 17, 2012), the district court in Mississippi held that it would be an undue burden on a juvenile detention center to allow a female officer to practice her Pentecostal religion by wearing long skirts. The employer submitted evidence that the officer would not be able to properly perform certain defensive or restraint maneuvers and would be hindered in her ability to chase a fleeing detainee. Similarly, in EEOC v. The Geo Group, 616 F.3d 265 (3d. Cir. 2010), the federal court of appeals sided with a private company that disallowed Muslim employees who worked in a prison to wear religious head coverings. The court credited the employer's testimony that the head coverings presented a risk to the employee because a prisoner could use one to choke the employee, and it presented a risk to the general security of the prison because it could be used to hide contraband and obscure surveillance images of the face. The employer could not reasonably accommodate the head coverings without substantial changes to its security procedures and the expenditure of significant personnel resources.

However, simply because the job involves security does not mean that any and all accommodations are per se unduly burdensome. For example, in Dodd v. SEPTA, 2008 WL 2902619 (E. D. Penn. July 24, 2008), the Southeastern Pennsylvania Transportation Authority did not establish that it was unduly burdensome to allow one of its police officers, who practiced the Rastafarian faith, to wear dreadlocks in a ponytail or bun. The employer's policy prohibited hair that extended below the uniform cap. The court found that accommodating the employee by allowing him to wear his hair in a ponytail or bun would not interfere with the officer's duty or uniformity of the SEPTA police force because female employees were allowed wear their hair in ponytails without causing SEPTA any hardship.

Practical Recommendations

In light of the increased enforcement efforts and the trend in the courts to require religious accommodation unless there is a quantifiable undue burden, employers are well advised to take the following precautions in consultation with their legal counsel or human resources professional:

• Review work rules, employee manuals, job descriptions and policies that include dress, grooming or uniform standards.
• Identify the goals that are advanced by the existing dress policies, and determine whether there is any empirical data to support that the dress code actually achieves or supports those goals.
• Reconsider and perhaps eliminate any dress codes that impinge on religious belief without advancing a legitimate business need.
• Educate managers about the company's legal obligation to accommodate employees who wear religious dress or engage in religious grooming practices.
• Determine what accommodations can be made, if there are employees who cannot comply with the dress or grooming codes because of their religious beliefs. Note that in California, reassignment to a role that keeps such employees out of the public view or away from other employees will not be a reasonable accommodation.
• Ensure that hiring qualifications are in writing and uniformly applied.
• Maintain accurate and complete records of disciplinary actions.
• Provide a mechanism by which employees may ask for a religious accommodation.
• Consider flexible leave and staffing policies that allow employees to be absent from work in order to observe religious holidays.

Looking to the Future

If the WFRA is any indication of things to come, employers will have to pay closer attention to their policies and procedures for employee hiring, dressing, and grooming to avoid religious discrimination claims. Employers will also have to exercise increased care in handling requests for accommodation. Unless doing so would cause a quantifiable hardship, employers should endeavor to make reasonable accommodations for religious dress, grooming, and observance. Sensitivity, creativity, and flexibility will be the keys to avoiding costly litigation.

Employers often are faced with tricky legal dilemmas when employees ask to display religious symbols and take time off for religious observance. Can an employer reject an applicant who insists on wearing head coverings or religious jewelry with her uniform? Can an employee be forced to work Christmas Eve ' one of the busiest retail days of the year ' if he wants to attend a Catholic mass? Does it matter if the job is security related? The most common religious request by retail employees is time off for a religious holiday, followed by requests to be excused from a dress code. Recent developments in both legislation and case law suggest that employers will have to handle these requests with increased sensitivity, flexibility, and creativity. Employers should only deny a religious accommodation when it would cause a quantifiable undue burden.

Increased Enforcement Efforts by the EEOC

Religious discrimination in the workplace has become an area of greater concern on a national level. Between 1997 and 2011, the number of religious discrimination charges increased from 1,709 to 4,151. After 9/11, religious discrimination became a priority focus of the EEOC, which undertook immediate efforts to address workplace backlash based on actual or perceived religious practices of employees. Today, combatting workplace harassment on the basis of religion (and other protected statuses) is one of the cornerstones of the EEOC's Strategic Enforcement Plan for 2012-2016. The EEOC made news in 2012 when it obtained a favorable settlement of a religious discrimination claim against a company that runs a number of Taco Bell restaurants, on behalf of an employee who was fired because he refused to cut his hair for religious reasons. The EEOC made the news again when it filed a complaint against a Burger King franchisee that fired a cashier when she insisted on wearing a long skirt prescribed by the Pentecost religion.

The CA Workplace Religious Freedom Act: Expanding Religious Protection

California took the lead in expanding religious protections for workers when Governor Jerry Brown signed into law the Workplace Religious Freedom Act of 2012 (WRFA), which amends the Fair Employment and Housing Act (FEHA). The amendment significantly expands employee rights with regard to religious garb and grooming in the workplace. First, it revises the FEHA definitions of “religion,” “religious observance” and “religious belief” to include religious dress and grooming practices. Second, it expands protected activity to include the wearing of religious clothing and other religious articles, and maintenance of grooming in accordance with the precepts of a religion. Third, it creates a higher bar for California employers to demonstrate undue hardship when refusing to accommodate an employee's request to be excused from company policy for religious reasons.

The WRFA is notable in that it specifically defines, protects, and broadly construes an employee's “religious dress practice” and “religious grooming practice.” Religious dress practice includes “wearing or carrying of religious clothing, head or face covering, jewelry, artifacts, and any other item that is part of the observance by an individual as his or her religious creed.” This may include head coverings, body piercings, and clothing. Religious grooming practice includes “all forms of head, facial or other body hair that are part of observing an individual's religious creed.” These definitions explicitly protect employees whose religion requires that they not cut their hair (Sikh), trim their beard (Judaism), forego head coverings (Islam), or other outward demonstrations of their faith.

The new California law is a major departure from federal law, and from prior California law, in that an employer cannot deny a request for accommodation if it is only a “de minimis” or even moderate hardship for the employer. Under Title VII of the Civil Rights Act, employers must reasonably accommodate the sincerely held religious practices of employees, unless doing so would create undue hardship for the employer. In other words, the employer may deny a religious accommodation request if the accommodation creates more than a de minimus cost or burden on business operations. Under the WRFA, the accommodation must be granted unless to do so would be substantially burdensome. From a legal and practical perspective, it will be much harder for an employer in California to justify denying a religious accommodation unless it has a real and significant impact on the business.

Harder to Prove Undue Hardship Based on Public Image

Refusal to make religious accommodation exceptions to dress codes based purely on a company's desire to create a particular public image is becoming harder to defend and will likely be entirely unavailable in California due to the provisions of the WRFA. Recent cases bear out this trend. In EEOC v. Alamo Rent a Car, 432 F.Supp.2d 1006 (D. Ariz. 2006), the federal district court in Arizona found that Alamo Rent a Car had not established even a de minimus burden when it would not allow an employee to wear a head covering while attending to customers at the rental counter. Although Alamo argued that any deviation from its carefully cultivated image would be a burden, it could not establish that it would cost the company any money, negatively affect the impression the employee would make on customers, or negatively impact customer expectation.

In EEOC v. Abercrombie and Fitch , 798 F.Supp.2d 1272 (D. Okl. 2011), the district court in Oklahoma ruled that Abercrombie and Fitch had failed to establish that allowing a sales associate to wear a head covering would be an undue hardship even though the retailer submitted evidence that its primary advertising is the in-store experience with its sales representatives (called “models”) and the look and feel of the store. The judge rejected Abercrombie and Fitch's expert testimony and the testimony of its executives that allowing a sales representative to wear a head covering would negatively impact the brand, sales and compliance. The judge pointed out that Abercrombie and Fitch had granted exceptions to the dress code for religious reasons on a number of occasions, but had never conducted any studies, nor could it cite any specific examples where deviation from the dress code resulted in decreased sales.

These cases show that courts are increasingly unwilling to find undue burden on the basis of public image. The court will not simply accept the employer's word that making an exception to the dress or grooming policy would be a substantial burden. As a practical matter, most employers will not have the resources to gather empirical data to show that allowing a religious dress or grooming accommodation negatively impacts its sales or its public image. As an evidentiary matter, employers will probably not be able to show undue burden where the employee has already been working without incident for some time and there have been no consumer complaints or decrease in sales.

Legitimate Safety Concerns Still a Viable Defense

The WRFA, consistent with federal law, will still allow an employer to deny requests for religious accommodation due to a legitimate safety concern, so long as the accommodation is a substantial burden. Where an employee is working around moving equipment, it may be a substantial undue hardship on the employer (or, in fact, impossible) to rearrange its production facilities to accommodate the wearing of certain clothing, jewelry, or facial hair. In Bhatia v. Chevron U.S.A., Inc. , 734 F.2d 1382 (9th Cir. 1984), the federal appeals court in California sided with the employer that refused to allow a machinist to maintain facial hair. A beard would have interfered with the employee's ability to wear a respirator as required by California occupational safety standards, and would have required the company to revamp its system of assigning work.

Dress codes have been upheld for correctional facilities on the basis of legitimate safety concerns. In Finnie v. Lee County, —F.Supp.2d—, 2012 WL 124587 (N.D. Miss. Jan. 17, 2012), the district court in Mississippi held that it would be an undue burden on a juvenile detention center to allow a female officer to practice her Pentecostal religion by wearing long skirts. The employer submitted evidence that the officer would not be able to properly perform certain defensive or restraint maneuvers and would be hindered in her ability to chase a fleeing detainee. Similarly, in EEOC v. The Geo Group , 616 F.3d 265 (3d. Cir. 2010), the federal court of appeals sided with a private company that disallowed Muslim employees who worked in a prison to wear religious head coverings. The court credited the employer's testimony that the head coverings presented a risk to the employee because a prisoner could use one to choke the employee, and it presented a risk to the general security of the prison because it could be used to hide contraband and obscure surveillance images of the face. The employer could not reasonably accommodate the head coverings without substantial changes to its security procedures and the expenditure of significant personnel resources.

However, simply because the job involves security does not mean that any and all accommodations are per se unduly burdensome. For example, in Dodd v. SEPTA, 2008 WL 2902619 (E. D. Penn. July 24, 2008), the Southeastern Pennsylvania Transportation Authority did not establish that it was unduly burdensome to allow one of its police officers, who practiced the Rastafarian faith, to wear dreadlocks in a ponytail or bun. The employer's policy prohibited hair that extended below the uniform cap. The court found that accommodating the employee by allowing him to wear his hair in a ponytail or bun would not interfere with the officer's duty or uniformity of the SEPTA police force because female employees were allowed wear their hair in ponytails without causing SEPTA any hardship.

Practical Recommendations

In light of the increased enforcement efforts and the trend in the courts to require religious accommodation unless there is a quantifiable undue burden, employers are well advised to take the following precautions in consultation with their legal counsel or human resources professional:

• Review work rules, employee manuals, job descriptions and policies that include dress, grooming or uniform standards.
• Identify the goals that are advanced by the existing dress policies, and determine whether there is any empirical data to support that the dress code actually achieves or supports those goals.
• Reconsider and perhaps eliminate any dress codes that impinge on religious belief without advancing a legitimate business need.
• Educate managers about the company's legal obligation to accommodate employees who wear religious dress or engage in religious grooming practices.
• Determine what accommodations can be made, if there are employees who cannot comply with the dress or grooming codes because of their religious beliefs. Note that in California, reassignment to a role that keeps such employees out of the public view or away from other employees will not be a reasonable accommodation.
• Ensure that hiring qualifications are in writing and uniformly applied.
• Maintain accurate and complete records of disciplinary actions.
• Provide a mechanism by which employees may ask for a religious accommodation.
• Consider flexible leave and staffing policies that allow employees to be absent from work in order to observe religious holidays.

Looking to the Future

If the WFRA is any indication of things to come, employers will have to pay closer attention to their policies and procedures for employee hiring, dressing, and grooming to avoid religious discrimination claims. Employers will also have to exercise increased care in handling requests for accommodation. Unless doing so would cause a quantifiable hardship, employers should endeavor to make reasonable accommodations for religious dress, grooming, and observance. Sensitivity, creativity, and flexibility will be the keys to avoiding costly litigation.