Effective January 1, 2013, California’s Fair Employment and Housing Act (FEHA) expands the definition of potentially protected religious beliefs and practices to include “religious dress and grooming practices.” Employers also must now meet a much more stringent standard to deny accommodation of religious practices as an undue hardship to the business.

Religious Dress and Grooming: The new law, titled the California Workplace Religious Freedom Act of 2012 (“WRFA”) amends Government Code sections 12926 and 12940 to specify that “religious dress practice” is “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” includes “all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”

This FEHA amendment thus establishes that an employee’s religiously motivated appearance (for example, a Sikh male’s turban or facial hair, or a Muslim woman’s head scarf) trigger an employer’s duty to seek reasonable accommodation of such a dress or grooming practice.

The new law also specifies that an employer accommodation “religious dress or grooming” is not reasonable if it requires the employee to be segregated from the public or other employees. This provision stems from a 2002 case where an employer segregated a Sikh man from public view due to his turban. FEHA now clearly states such an employer action would be unlawful.

The new law also directs that an employer is not required to accommodate such a dress or grooming request if it would result in the violation of any other law prohibiting discrimination or protecting civil rights.

Employer’s More Stringent Requirements to Establish Undue Hardship on Any Religious Accommodations: Before 2013, California employers could show “undue hardship” by establishing a worker’s request for religious accommodation would have but a bare minimum (de minimus) negative impact on the business’s operations or finances. See, e.g., “Avoiding Religious Discrimination in the Workplace,” Bowles Law Report, Vol. 9, Issue 4.

Similar to lawful “undue hardship” justifications for declining accommodations of employee disabilities, a company must now show a “significant difficulty or expense” to establish undue hardship in the religion context. “Significant” depends on several factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved, the number of persons employed at the facility, and the effect on expenses and resources or on the operation of the facility; (3) the overall financial resources of the company as a whole; (4) the type of operations of the company; and (5) the geographic separateness of the facility.

FEHA continues to require that a business claiming undue hardship demonstrate that it has explored any available reasonable means of accommodating the religious belief or observance.

Issues in this area tend to be sensitive and complex. For help, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Related Article:

“Accommodating Religion in the Workplace: Avoid the Employment Discrimination Gallows”