Religious Discrimination: A Primer, Vol. 19, No. 5
Under Title VII of the Civil Rights Act of 1964 ("Title VII") and California’s Fair Employment and Housing Act ("FEHA"), California employers are prohibited from discriminating against employees on the basis of religion. But the extent to which these laws require employers to accommodate their employees’ beliefs — from veganism to the need for a place to pray — has been the subject of a spate of litigation in the last decade. This article provides a brief overview of the extent to which employees’ religious beliefs are protected under the current law and identifies some of the obligations imposed upon employers to accommodate such beliefs.
Scope of Religious Discrimination Protection
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion . . . ." 42 U.S.C. § 2000e-2(a)(l). Title VII applies to all employers with 15 or more employees except religious corporations, associations, educational institutions, or societies "with respect to the employment of individuals of a particular religion to perform work connected with" the religious institutions’ activities.
Similarly, FEHA makes it unlawful for an employer of five or more employees to refuse to hire, to select for training, to discharge, or to otherwise discriminate against an individual in compensation or in terms, conditions, or privileges of employment, on the basis of religious creed. Cal. Gov’t. Code § 12940(a). It also makes it unlawful for an employer of one or more persons to harass an employee or applicant because of religious creed. Cal. Gov’t. Code § 12940(h). However, the term "employer" does not include a religious association or corporation not organized for private profit.
To establish a Title VII violation, the employee must show that: (1) the employee held a bona fide religious belief, the practice of which conflicted with an employment duty; (2) the employee informed the employer of his or her religious belief and a conflict with particular job duties; and (3) the employer took adverse action (e.g., refusal to hire, or discharge) because of the employee’s inability to fulfill the job requirement. Balint v. Carson City, Nevada, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997).
Similarly, to establish "religious creed" discrimination under the FEHA, an employee must show that he or she had a bona fide religious belief, his or her employer was aware of that belief, and the belief conflicted with an employment requirement. Friedman v. Southern Calif. Permanente Medical Group, 102 Cal. App. 4th 39, 45 (2002).
Bona Fide Religious Belief or Creed
Title VII defines religion to include "all aspects of religious observance and practice, as well as belief . . . ." 42 U.S.C. § 2000e(j). In two landmark cases, the United States Supreme Court established the following two-pronged test to determine whether a belief, practice, or observance is "religious": (a) Is the belief religious in the individual’s own scheme of things, i.e., does it occupy in the life of the individual a place parallel to that filled by God in those systems of belief that historically have been regarded as religious? and (b) Is the belief sincerely held? United States v. Seeger, 380 U.S. 163 [13 L. Ed. 2d 733, 85 S. Ct. 850] (1965); Welsh v. United States, 398 U.S. 333 [26 L. Ed. 2d 308, 90 S. Ct. 1792] (1970). The Equal Employment Opportunity Commission ("EEOC") has adopted this test, and its guidelines further provide that religious practices "include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. . . ." 29 C.F.R. § 1605.1 (2002). Cases interpreting Title VII have held that religious beliefs include "atheism."
Similar to the definition under Title VII, the Fair Employment and Housing Commission has defined "religious creed" under FEHA to include "any traditionally recognized religions as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions." Like Title VII, FEHA also protects atheists. The California Court of Appeal has adopted the following guidelines for ascertaining whether a "belief" is protected by FEHA: (a) does the belief address fundamental and ultimate questions having to do with deep and imponderable matters? (b) is the belief system comprehensive, as opposed to an isolated teaching? and (c) is the belief recognized by formal and external signs such as teachers or leaders, services or ceremonies, orders of worship, articles of faith, and holidays? Friedman v. Southern Calif. Permanente Medical Group, 102 Cal. App. 4th 39, 69-70 (2002) (holding that, under this test, veganism is not a religious creed protected by FEHA).
In general, both federal and state courts afford great deference to assertions by individuals under Title VII and FEHA that their claims are founded in sincerely held religious beliefs. For example, religious activities that an individual desires to undertake may be protected even though the activities are not required under the tenets of any religion. Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978) (holding that employer discriminated against Jehovah’s Witness who refused to work overtime on Saturdays because he wanted to lead a Bible class, even though Saturday work was not prohibited by religion). However, there are limits to that deference. Religious beliefs that violate the law (such as polygamy) or that conflict with regulations (such as OSHA guidelines) are not protected by Title VII or FEHA.
Notice to the Employer
An employer’s obligations under Title VII and FEHA are triggered once the employer becomes aware, either from the employee or in some other way, of the employee’s beliefs. 2 Cal. Code Regs. § 7293.1. However, an employer is not required to accommodate an employee’s religious beliefs if the employee fails to provide the employer with sufficient notice of his or her beliefs. Mere last-minute requests for time off or vague references to the need for such time, generally do not provide an employer with reasonable advance notice such that it can be liable for the denial of the request. Ferguson v. Kroger Co., 16 FEP Cases 773 (S.D. Ohio 1978), aff’d mem., 22 FEP Cases 1376 (6th Cir. 1980) (holding employer not liable for discharging employee who was absent to attend a religious meeting where the employee only provided the employer with three days’ advance notice); Johnson v. Angelica Uniform Group, Inc., 762 F.2d 71 (8th Cir. 1985) (holding that vague reference to needing time off for religious purposes and notifying an employer after discharge do not constitute adequate notice).
Discriminatory Treatment on the Basis of Religion
Once an employer is on notice of an employee’s religious beliefs, both Title VII and FEHA not only require that the employer not discriminate against or harass the employee because of such beliefs, but also impose on employers an obligation to accommodate the employee’s religious beliefs and observances. An employee’s religious beliefs must be accommodated unless "the employer can show that no accommodation would be possible without undue hardship." Opuku-Boateng v. State of Calif., 95 F.3d 1461, 1467 (9th Cir. 1996); Balint v. Carson City, Nevada, 180 F.3d 1047, 1050 (9th Cir. 1999) (employer may have to reorganize all employees’ shifts and allow split shifts in order to accommodate one employee’s preference not to work on her Sabbath). Although this is a gray area of the law often determined on a case-by-case basis, in general, courts have held that employers must accommodate an employee’s:
What This Means For Employers
If an employer subject to Title VII and FEHA learns that its employee or potential employee holds particular religious beliefs, it must not take any actions against that employee or potential employee (i.e. refuse to hire, fail to promote, terminate, or otherwise discipline) because of those beliefs. Moreover, once an employer is informed that an employee’s religious beliefs conflict with the conditions of employment in some way, it is obligated to take reasonable steps toward accommodation and negotiate with the employee in an attempt to reasonably accommodate the employee’s religious beliefs.
To accommodate an employee, an employer should consider 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., 244 F.3d 495, 500 (5th Cir. 2001). "Reasonable" accommodations could also include schedule changes, voluntary shift trades, and temporary accommodations or transfers. 29 C.F.R § 1605.2(d)(1); 2 Cal. Code Regs. § 7293.3(a); Cook v. Lindsay Olive Growers, 911 F.2d 233, 241 (9th Cir. 1990).
Employers, however, are not required to accommodate an employee’s religious practice where the accommodation would impose a hardship on the conduct of its business and would result in more than a de minimis cost. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830 (9th Cir. 1999) (undue hardship applies where accommodating employee’s religious beliefs would require employer to violate federal law). For example, an employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his or her co-workers or deprive them of a contractual or other statutory right. Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) (holding that employer need not revise harassment plan to exclude discrimination on the basis of sexual orientation because one employee believed homosexuality was a sin). When evaluating an employer’s decision that an accommodation would cause an undue hardship, courts consider various factors, including: (a) the nature and cost of the accommodation required; (b) the facility’s overall financial resources, the number of persons employed there, and the impact on operation of the facility; (c) the employer’s overall financial resources and size of business; (d) the type of operations; and (e) geographic separateness, administrative or fiscal relationship of the facility or facilities. Cal. Gov. Code § 12926(s).
In determining how to accommodate an employee, an employer can choose the accommodation that makes the most business sense — it is not required to accept the alternative favored by the employee. Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60, 69, 107 S. Ct. 367, 372, n. 6 (1986).
In addition to the above obligations, an employer would be prudent to adopt anti-harassment policies that forbid its employees from discriminating against or harassing their co-workers because of their religion. An employer should also provide training for its employees which clearly explains what conduct can be considered harassment, for example, telling jokes that contain religious stereotypes.