Effective January 2013, two new California laws will broaden what constitutes discrimination based on an employee’s sex or religion. Practices that may have been lawful for 2012 could now create liability and litigation for 2013.
Gov. Jerry Brown signed into law Assembly Bill (AB) 2386, which amends the statutory definition of sex under the California Fair Employment and Housing Act (FEHA). This bill is intended to prevent breast-feeding discrimination in the workplace. Although the California Labor Code already requires employers to provide accommodations for women who are breast-feeding, this new law goes a step further by providing additional recourse for women who have encountered breast-feeding discrimination.
Historically, federal and state laws have offered little protection for women who have been discriminated against for requesting special accommodations for breast-feeding. Title VII has been the most common statute for women seeking recourse for breast-feeding discrimination, but several federal courts have rejected these claims. For instance, a Texas federal court recently held that firing someone because of lactation or breast-pumping is not sex discrimination (Equal Employment Opportunity Commission v. Houston Funding II (S.D. Tex. 2012)). The Obama administration’s health care reform law requires employers to provide nursing mothers with a reasonable break time and place to express breast milk, but it does not provide recourse for discrimination related to breast-feeding.
Until recently, California courts took a similar approach. But in DFEH v. Acosta Tacos, the Fair Employment and Housing Commission ruled that the termination of an employee because she insisted on her right to breast-feed constituted termination on account of the employee’s sex and violated the FEHA. This case proved to be the spark that led to AB 2386.
Businesses must be ready to meet the challenges of implementing this new law. First, employers should consider updating their employee handbooks or implementing a breast-feeding policy. Second, employers should take seriously any complaints from employees relating to breast-feeding and should treat these complaints with the same seriousness as they would a complaint based on race or age discrimination.
Religious Dress and Grooming Practices
Another new law for 2013, AB 1964, deals with religious discrimination. It requires employers to reasonably accommodate an employee’s appearance at work.
The law clarifies that “religious dress and grooming practices” are covered by the protections against religious discrimination. These terms are broadly construed to include religious clothing and coverings (such as turbans, yarmulkes and hijabs) and jewelry and artifacts (such as a cross or Star of David), or anything else that is part of the observance of an individual’s religious beliefs. An employee’s head, facial or body hair that are part of the observance of an individual’s religion are also protected.
Employees observing their religion must be reasonably accommodated. However, the new law specifically states that segregating an employee from the public or other employees is not a reasonable accommodation.
Disneyland encountered such a situation when a Muslim employee, Imane Boudlal, filed a religious discrimination lawsuit in a California federal court. She alleged, among other things, that Disneyland did not permit her to wear her hijab. Disneyland purportedly offered several accommodations, including proposing that Boudlal work in the back where she would be unseen by park-goers. Under the new law, this accommodation would be unreasonable and would not absolve an employer’s duty to accommodate its employees’ religious attire and grooming practices.
Employers may fear that this new law requires them to acquiesce to employee demands regarding their dress without taking into account the company’s business policies and procedures. The new law provides at least limited safeguards to prevent employees from exploiting this law. Employers do not have to accommodate an employee if it would create an “undue hardship” for the company. Unfortunately, this term is fact-specific and does not provide the greatest clarity for employers that want to accommodate an employee’s religious dress and grooming practices while minimizing any interference with business.
So what do employers do? When an employee requests an accommodation, employers should take the request seriously and avoid giving the impression that the request is insignificant or creates a hassle for the company. Just as they do with disability accommodations, employers should work with employees to find a solution suitable to both parties. Any inclination to isolate or segregate an employee, or any other solution that may be perceived as a punishment or a demotion, should be avoided. Of course, documenting an employer’s proposed reasonable accommodations is a must. Given the ambiguity of “reasonable accommodation” and “undue hardship,” employers should consider contacting legal counsel when a solution does not appear readily achievable.
Implementing these solutions may help prevent 2012’s policies from becoming 2013’s liabilities.
Joseph Naddour and Ryan Crosner are attorneys in Rutan & Tucker’s labor and employment section. With offices in Costa Mesa and Palo Alto, Rutan & Tucker is California’s largest full-service law firm headquartered in Orange County. To read the original article, please click here.