The Fair Employment and Housing Act (FEHA) is the California law that addresses the rights of individuals with regard to religion and the obligations of employers. The FEHA provides protection from discrimination in employment because of a person’s religious beliefs or creed.
California’s fair employment law regarding employment provides protections independent from those in the federal Title VII of the Civil Rights Act of 1964. The FEHA pertains to private businesses, as well as to the government (but does not include an employer that is a religious association or corporation not organized for private profit.)
To reasonably accommodate an applicant or employee in California, you must know what is required by California state law and alternatively what constitutes a religious belief or creed under state law.
This how-to-guide outlines the various steps involved when handling a request for accommodation from both applicants for employment and current employees. However, the guide is not meant to be nor should it be construed as legal advice, and employers should seek the guidance of California employment law attorneys when making religious accommodation-related decisions in their respective workplaces.
Step 1: Determine If You Are a Covered Employer Under the FEHA
The FEHA defines an employer as a private- or public-sector employer or agent of an employer who either directly or indirectly employs five or more persons. An employer does not include a religious association or corporation not organized for private profit. See, C.G.C. §12926(d).
Step 2: Ensure a Policy and Procedure Exists for Handling Accommodation Requests
Review your organization’s policy and procedures for handling requests for accommodations. If your organization does not currently have a written policy, then you should conduct a careful review as to what the company’s past practices have been with regard to handling employee requests for religious accommodations.
Step 3: Determine if the Employee Is a Qualified Individual with a Qualifying Religious Belief Under the FEHA
Review the employee’s request. California’s law and definitions are broader in many aspects than federal Equal Employment Opportunity (EEO) laws. According to California’s FEHA, a religion is defined as all traditionally recognized religions and beliefs, observations, or practices sincerely held that occupy in the employee’s life a place of importance parallel to that of traditionally recognized religions. Additionally, case law has clarified that this duty extends beyond accommodating only required religious tenets and may include observances an employee simply prefers to follow or attend and that an employer should generally avoid inquiry into whether a religious observance is required.
Religious creed, religion, religious observance, religious belief, and creed have been defined to include all aspects of religious belief, observance and practice, including religious dress and grooming practices (a religious grooming practice is construed to broadly include all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed).
Step 4: Determine a Reasonable Accommodation
Once you have engaged in the steps listed above, you should begin the process of determining the reasonable accommodation options. Reasonable accommodations can vary in scope and will vary from case to case.
The FEHA requires that you accommodate religious beliefs and observances if reasonably possible to do so and if it does not cause an undue hardship. For the most part a reasonable accommodation is one that eliminates the employee’s conflict between his or her religious practices and work requirements and that does not cause an undue hardship for the employer. Obtain input from the supervisor who has knowledge about the duties of the position and the worksite to help determine the feasibility and what may be a reasonable accommodation.
The relevant question when an employee makes a request for an accommodation to permit a religious observance is whether you can reasonably grant the request without undue hardship. Thus, reasonable accommodation, in the religious discrimination context, means job modifications that enable an individual to exercise personal religious beliefs, including (without limitation) scheduling changes to permit religious observances, permitting certain dress and grooming practices and permitting employees to pray at work in some circumstances (e.g., during break time in a private area or, as in some faiths, at regular intervals throughout the day).
You can permissibly refuse to accommodate a request for reasonable accommodation from an applicant or employee if doing so would present an undue hardship to the operation of your business. (The undue hardship definition that applies to other types of discrimination also applies to religious discrimination.) However, you should exert caution when using the undue burden or hardship defense as a rationale to not accommodate an FEHA disability accommodation request.
If you deny an accommodation because it would be an undue hardship, you must show that the accommodation requires significant difficulty or expense, when considered in the light of the following factors:
The nature and cost of the accommodation needed.
The financial resources of the facilities involved, the number of employees at the facility and the financial impact of these accommodations on the operation of the facility.
The overall financial resources of the employer, the size of the business with respect to the number of employees, and the number, type and locations of its facilities.
The type of operations, including the composition, structure and functions of the workforce of the employer.
The geographic separateness, administrative or fiscal relationship of the facility or facilities.
Step 5: Notify the Employee
Once you have selected the most effective accommodation options to be implemented, you should then discuss those accommodation options with the employee who requested the accommodation. Although you are free to choose among effective accommodation options, consulting with and considering the preference of the employee is a recommended practice as it further demonstrates good faith on your part.
Notify the employee in writing that his or her requested accommodation has been approved or denied. Be sure to include details of the accommodation.
Maintain all copies of accommodation requests and supporting information and documentation, including denials, in the employee personnel file, consistent with the confidentiality requirements of the FEHA. Document specific accommodations that will be made.
Step 6: Implement Accommodations
As soon as an accommodation has been agreed on, it should then be implemented as quickly as possible.
Step 7: Review and Modify
Remember that the accommodation process is not set in stone and that it may need to be reviewed, especially if the needs of the employee or business change.
Collect and analyze data in relation to accommodations to ensure their effectiveness in continuing to meet both the needs of employees as well as the organization.