California Burdensome Accommodations for Religious Observances

Both federal and California law have long forbidden religious discrimination in employment, while also requiring employers to grant reasonable accommodations for religious observances.  A common accommodation is to modify a policy to enable an employee to engage in a particular religious observance (such as not working on the Sabbath).  California has now set itself apart with the recent amendments to the FEHA. 

Federal Law:  Since 1977 the federal law has recognized that employers need not provide accommodations that would impose more than a minimal burden on the employer’s operations.  And federal cases have also allowed employers, in enforcing personal-appearance codes, to accommodate certain grooming or dress practices by having the employee work in a designated area of the workplace.

California Peculiarities:  The FEHA amendments essentially codify cases holding that employers must reasonably accommodate religious dress and grooming practices.  But the Legislature has now made California quite distinct from federal law in two fundamental respects: 

1. It is now clear, if it was not before, that California law, unlike federal law, requires employers to show a truly significant “undue hardship” to avoid providing a reasonable accommodation.
2. California now categorically disallows, as a form reasonable accommodation, the practice of having the employee work in a designated part of the workplace to avoid, for example, contact with customers.

Workplace Solutions:  From a practical perspective, the new FEHA amendments will cause employers to review their policies and procedures relating to dress and grooming codes to ensure that they comply with California’s new, stricter provisions. The employer’s use of the interactive process in addressing disability accommodations could serve as a good model in addressing issues of religious accommodations, especially now that the undue hardship analysis in both kinds of cases will be essentially the same.

By David D. Kadue and Julie G. Yap