BILL ANALYSIS Ó
AB 1964
Page 1
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1964 (Yamada) - As Amended: April 16, 2012
SUBJECT : Discrimination in employment: religious
accommodations.
SUMMARY : Makes a number of changes to provisions of the Fair
Employment and Housing Act (FEHA) related to religious
accommodation in employment. Specifically, this bill :
1)Specifies that, for purposes of employment discrimination law
(including accommodation), "religious belief or observance"
includes, but is not limited to, the practice of wearing
religious clothing or a religious hairstyle.
2)Defines "wearing religious clothing or a religious hairstyle"
to be broadly construed and to include:
a) Wearing religious apparel that is part of the observance
of the religious faith practiced by the individual.
b) Wearing jewelry or an ornament that is part of the
observance of the religious faith practiced by the
individual.
c) Carrying an object that is part of the observance of the
religious faith practiced by the individual.
d) Adopting the presence, absence, or style of a person's
hair or beard that is part of the observance of the
religious faith practiced by the individual.
3)Provides that, for purposes of employment discrimination, an
accommodation is not reasonable if it requires segregation of
an employee from customers or the general public.
4)Clarifies that "undue hardship" for purposes of religious and
disability accommodation means as that term is defined
statutorily in FEHA.
5)Adds an additional factor for consideration of whether an
accommodation constitutes an undue hardship: the safety and
AB 1964
Page 2
health requirements in a facility, including requirements for
the safety of other employees and any other person whose
safety may be adversely impacted by the requested
accommodation.
EXISTING LAW :
1)Prohibits an employer or other entity covered under FEHA from
discriminating against an individual on the basis of
"religious creed."
2)Prohibits an employer or other entity covered under FEHA from
discriminating against an individual because of a conflict
between the person's religious belief or observance and any
employment requirement, except as provided.
3)Specifies that "religious belief or observance" includes, but
is not limited to, observance of a Sabbath or other religious
holy day or days, and reasonable time necessary for travel
prior and subsequent to a religious observance.
4)Provides that this prohibition does not apply if the employer
demonstrates that it has explored any available reasonable
alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person
from those duties that conflict with his or her religious
belief or observance or permitting those duties to be
performed at another time or by another person, but is unable
to reasonably accommodate the religious belief or observance
without "undue hardship" on the conduct of the business of the
employer.
FISCAL EFFECT : Unknown
COMMENTS : Employment discrimination on the basis of religion
is generally prohibited both under federal law under Title VII
of the Civil Rights Act of 1964 and under California law under
the Fair Employment and Housing Act (FEHA). Both laws also
require an employer to reasonably accommodate the religious
belief or observance of an employee, unless to do so would
result in an "undue hardship" to the employer.
This bill proposes a number of changes to state law under FEHA.
First, the bill proposes to specify that "wearing religious
clothing or a religious hairstyle" constitutes be a religious
AB 1964
Page 3
belief or observance protected under the law. Second, the bill
attempts to clarify which definition of "undue hardship" applies
to religious accommodation (and disability) cases under FEHA.
Third, the bill provides that, for purposes of employment
discrimination, an accommodation is not reasonable if it
requires segregation of an employee from customers or the
general public.
Survey of Religious Discrimination Cases Under FEHA
Unfortunately, there are relatively few (four) reported
religious discrimination cases under California law under the
Fair Employment and Housing Act:
In FEHC v. Gemini, 122 Cal.App.4th 1004 (2nd Dist., 2004), the
plaintiff, Young, requested time off to attend a Jehovah's
Witness convention that he believed to be mandatory for his form
of worship and religious study in his faith. The employer
denied the request, and terminated Young when he failed to
arrive at work on the day in question. The employer argued that
attending a Jehovah's Witness convention was not a tenant of the
faith, but the court found that under California law, an
employer is required to accommodate not just a religious belief,
but also a religious observance if reasonably possible without
undue hardship. The court found that the employee had
established a prima facie case of religious discrimination under
FEHA, and that the employer had failed to act in good faith an
effort to accommodate an employee's religious observation, and
that the employer retaliated against the employee by terminating
him for protesting against religious discrimination.
In Best v. California Apprenticeship Council, 161 Cal.App.3d 626
(4th Dist. 1987), the plaintiff (Best) was in the Electrical
Joint Apprenticeship Training Committee (JATC) when he sought an
exemption from an assignment to be completed at a nuclear power
plant on religious grounds. The committee denied his request,
and terminated him from the program. The court applied a three
prong test laid out in prior federal case law. First, a court
should consider the magnitude of impact of the challenged
practice on the petitioner's right to free exercise of religious
beliefs. Second, having found a significant impact on the
petitioner's free exercise rights, a court should consider
whether a compelling state interest existed to justify the
challenged practice. Finally, finding a compelling state
interest in a practice having a significant and adverse impact
AB 1964
Page 4
on the petitioner's religious rights, a court should consider
the extent to which exempting the plaintiff from the requirement
he found objectionable would impede the interest served by the
rule requiring the action.
The Best court relied on traditional first amendment analysis to
decide whether the employer had a compelling interest to
infringe on the employee's religious freedom. The court held
that forcing Best to participate in the construction of a
commercial nuclear power plant seriously infringes on his right
to exercise religious freedom. Under the second prong of the
test, the court concluded that there was a compelling state
interest served by requiring apprentices in trades to meet
standards under the administration of experts before being
certified in their trade. However, a rule requiring all
apprentices to work for a particular private corporation does
not appear to serve any state interest, where the training
available under that corporation is also available under other
employers at other sites. Here, the wiring training available
at the nuclear energy plant was also available at other
non-nuclear sites. Therefore the court found that the JATC had
an obligation to accommodate the apprentice's sincerely held
religious beliefs.
In Soldinger v. Northwest Airlines, 51 Cal.App.4th 345 (2nd
Dist. 1997), a Jewish employee requested time off for Passover
holidays, but was fired when she didn't show up for her shift
because she could not find another employee to cover her shift.
Her employer made no effort to assist her to make an alternative
schedule, or find other employees willing to cover her shift.
The employer argued that the Railway Labor Act, which governed
unionized employees who work for the railway and airlines,
preempted state law. The court ruled that religious
discrimination and retaliation was not a 'minor issue' under the
RLA, and therefore was not preempted. The court also noted that
although the employer has the burden to reasonably accommodate
an employee's religious belief, the reasonableness of the
accommodation will be judged on a fact by fact basis, and that
the employer is not required to choose the employee's preferred
accommodation, nor is the employer required to choose the most
reasonable accommodation.
The employer further contended that following the collective
bargaining agreement in of itself was a reasonable
accommodation, because if the employer had tried to accommodate
AB 1964
Page 5
the employee's request outside the CBA's seniority system, the
employer would have violated its contractual obligations. In
deciding this issue, the court distinguished this case from
prior federal case law, where a federal court concluded Title
VII did not require "... an employer and union who have agreed
on a seniority system to deprive senior employees of their
seniority rights in order to accommodate a junior employee's
religious practices ..." Trans World Airline v. Hardison, 432
U.S. 63,83 (1977). The court reasoned that because Soldinger
was to be decided on a summary judgment motion, nothing in the
facts showed that the employer had explored alternative methods
to accommodate Soldinger, and there are no facts that show
accommodating Soldinger would violate the rights of more senior
employees. Therefore, the court held that Northwest Airlines
did not reasonably accommodate Soldinger's religious beliefs.
In Friedman v. Southern California Permanente Group, 102
Cal.App.4th 39 (2nd Dist. 2002), an applicant brought an action
against Southern California Permanente Group for religious
discrimination and retaliation alleging that the employer
withdrew its offer when the applicant informed the employer that
he would not be vaccinated because he was vegan and the mumps
vaccine was grown in chicken embryos. The court had to decide
whether veganism was a "religious creed" under FEHA. Reasoning
that the plaintiff's decision what to eat was a way of life, and
was more similar to decisions about what clothes to wear and
what products to use than a "religious belief" under the
definition FEHA, the court upheld the employer's decision and
ruled that veganism is a personal philosophy and not a religious
creed for the purposes of FEHA.
Federal Cases Under Title VII Involving Religious-Based Grooming
Religious discrimination and accommodation case law is much more
widely developed under Title VII of the Civil Rights Act of
1964.
Under Title VII, the duty to accommodate grooming requirements
is unique because the undue hardship defense usually does not
usually apply. There are two important exceptions. First,
Courts have found that under a 'de minimis' standard, undue
hardship may be applicable if the requested accommodation
interferes with the employer's professional image to attract and
retain customers. The First Circuit considered this question in
Cloutier v. Costco Wholesale, where the plaintiff alleged that
AB 1964
Page 6
Costco had discriminated against her based on her membership in
the Church of Body Modification. 390 F.3d 126 (1st Cir, 2004).
In order to maintain a professional image, Costco had a strict
no-facial- jewelry policy for employees who interact with
customers, or handle certain food products. When Cloutier
informed her employer that her piercings were considered
religious practice by the Church of Body Modification, Costco
offered to allow her to wear skin-colored band aids or plastic
retainers over her piercings during her work shift or reassign
to her previous job of stocking boxes, when she refused both
accommodations Costco terminated her. Costco argued that
allowing the plaintiff to keep her facial piercings in would
impose an undue hardship that would tarnish their 'image'. The
First Circuit applying the 'de minimums test' found that Costco
had met its burden of showing an undue hardship in making
exceptions to their no-facial jewelry policy.
Similarly, courts considering no-facial hair policies have
generally found that these policies are not motivated by
discrimination, and exceptions to these policies do in fact
create an undue hardship on the employer. Some courts have even
found that a clean-shaven look is a bona fide occupational
qualification of certain jobs, especially in the restaurant
industry. E.E.O.C. v. Sambo's of Georgia, 530 F.Supp. 86, 91
(N.D.Ga.1981) (holding that a restaurant's enforcement of a
"clean shaven" policy on a member of the Sikh religion was not
unlawful discrimination); Eastern Greyhound Lines Div. of
Greyhound Lines, Inc. v. New York State Div. of Human Rights, 27
N.Y.2d 279, 283 (1970) (enforcing "clean-shaven" requirement is
not unlawful discrimination against Muslim baggage clerk because
policy is justified by desire to promote business and has no
religious connotation). Courts have also emphasized that when
grooming or clothing concerns religious beliefs, both the
employer and employee have the obligation to work together to
find a reasonable accommodation, and that the employer does not
have to meet an employees on-the spot demand for an exception to
its policies. Hussein v. Waldorf-Astoria, 134 F.Supp.2d 591,
599 (2001).
However, in 2005, the court in EEOC v. Red Robin narrowed the
scope of the Cloutier decision by finding that undue hardship
for religious accommodations in the Ninth Circuit's jurisdiction
is guided by a fact specific consideration. The court in Red
Robin found that the employer had to meet the plaintiff's
request to accommodate his wrist tattoos representing his
AB 1964
Page 7
dedication to the sun god Ra because of the small size of the
tattoos, the placement of the tattoos on his wrists, and the
fact that plaintiff was employed for over six months without any
known complaints from the customers. The employer argued that
allowing the plaintiff to have visible tattoos was an undue
hardship because it tarnished the family-style, and kid friendly
atmosphere of the restaurant. The court found that an employer
bears the burden to show actual data that proves the undue
hardship through lost customers and tarnished business image,
and cannot simply rely on hypothetical data to deny reasonable
accommodation. Consequently, the court found that in this
particular situation the employer had illegally discriminated
against the plaintiff in terminating him after he requested
special religious accommodations.
The second important exception to the employer's duty to
accommodate religious grooming requirements is when safety is
the main concern. In Bhatia v. Chevron, the Ninth Circuit found
that that Chevron could reassign an employee who refused to
shave his beard for religious reasons, when wearing a gas-tight
respirator was necessary to protect him from exposure to
potentially toxic gases. 734 F.2d 1382 (9th Cir. 1984). The
court held that Title VII did not require Chevron to make
accommodations that went as far as reassigning work that
involved potentially harmful substances, and requiring the
plaintiff's co-workers to assume a larger share of hazardous
work.
More recently, however, in 2008, the California State Personnel
Board found that the California Department of Corrections and
Rehabilitation discriminated against a Sikh applicant who
refused to shave his beard on religious grounds, necessary to
comply with the gas mask safety test. The Administrative Law
Judge noted that the Department made exceptions for employees
who could not shave due to skin conditions by providing them
with other masks, and there was no legitimate reason the
Department could not make the same accommodations for the a
religious objector. 2008 WLNR 23717684.
Federal Cases Under Title VII Involving Religious Dress
Case law involving accommodation of religious clothing
requirements has developed in a similar manner to cases
involving religious grooming requirements. When clothing could
pose a threat to the safety of the employee and those around
AB 1964
Page 8
them, courts have general found religious clothing
accommodations to be undue hardships on employers; however,
when there is no safety concern and there is a mere "looks"
policy at issue, courts have been less willing to extend the
undue hardship exception. Courts have found that when the
employee is in a police, prison guard, military or other
law-enforcement related role, following the dress code is
especially important. In Webb v. City of Philadelphia, a Muslim
female police officer petitioned the police department to allow
her to wear a headscarf in addition to her uniform. 562 F.3d
256, 265 (2010). The city on the other contended that it must
maintain neutrality in its police officers appearance and
creating an exception would pose an undue hardship. The third
circuit found that safety is of the utmost importance to police
departments, and uniform requirements are crucial to the safety
of the officers and the general public. Additionally, the court
stated that since the plaintiff was unable to prove that the
police department had knowledge of officers who wore religious
symbols such as cross pendants on their uniform, the plaintiff
could not rely on hypothetical occurrences to refute the
employers undue hardship claim.
On the other hand, when an employee works outside a role where
safety is the primary concern, courts have been less willing to
override an employer's obligation to accommodate religious
clothing on the basis of undue hardship. In EEOC v. Abercrombie
& Fitch Stores, the plaintiff, a young Muslim woman who wore a
headscarf had informed the store during her interview process
that she would need to continue wearing her headscarf in
addition to the store's other clothing requirements. 798
F.Supp.2d 1272, 1287 (2011). The Abercrombie stores had a
strict "looks policy" that was used to present a model look
consistent with the clothes sold at the store. The store
declared that creating a religious exception for the plaintiff
would negatively impact the brand, sales and compliance, despite
the fact that other national Abercrombie stores had made
headscarf exceptions. A district court in Oklahoma found that
the employer failed to offer proof of an undue hardship that was
not based on hypothetical facts and data, therefore did not bear
an undue burden to accommodate the plaintiff's religious
clothing requests. Employers have to prove that a proffered
hardship is actual and cannot rely on mere speculation. See
Smith v. Pyro Mining, 827 F.2d 1081, 1086 (6th Cir. 1987); see
also Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th
Cir, 1981).
AB 1964
Page 9
Title VII Cases Involving Religious Accommodations Which Result
in Segregation, Transfers or Cuts in Pay
Several cases arising under Title VII have addressed the
question of whether an employer's proffered reasonable
accommodation of religion can involve, segregating the employee,
transferring the employee to another position and/or placing the
employee in a different position that results in a loss of pay
or other benefits.
When an employer makes an accommodation based on an employee's
religious objections, the U.S. Supreme Court found in Ansonia
Board of Education v. Philbrook, that nothing in either Title
VII or its legislative history requires an employer to choose
any particular reasonable accommodation. As the Cloutier court
emphasized, an employee has the duty to cooperate with the
employer to find a reasonable accommodation. However, the Sixth
Circuit held in Draper v. US Pipe & Foundry Co., that a transfer
that adversely affects an employee to reasonably accommodate
them should be the last resort only to be used when no work is
available in the employee's current job classification. 527
F.2d 515, 519-20 (6th Cir. 1975). In Cook v. Lindsey Olive
Growers, the 9th Circuit held that in the case at hand, the
employer had reasonably accommodated the employee's religious
belief to abstain from working on the Sabbath by transferring
him to a lower position because the transfer resulted only in a
slight pay cut. 911 F.2d 233, 241 (9th Cir. 1990). Courts have
generally found that, where accommodations that do not result in
pay cuts are available, choosing an accommodation which results
in substantial reduction in pay may not qualify as reasonable
under the law. Requiring such a pay cut may expose the employer
to retaliation, or intentional discrimination charges that may
support a claim for punitive damages.
An unpublished decision, Birdi v. UAL, 2002 WL 471999 (2002), is
a religious discrimination case heard in the U.S District Court
for the Northern District of Illinois. The case involved Birdi,
a Sikh man who was prevented from wearing a turban by his
employer UAL Corp while performing his duties as a Customer
Service Representative. The employer offered Birdi six other
alternative positions, and terminated him when he refused all
the alternatives because he wanted to remain in a position that
allowed him to interact with customers. The plaintiff brought a
Title VII religious discrimination action against UAL. On
AB 1964
Page 10
summary judgment, the court and the employer agreed that Mr.
Birdi met his prima facie burden of showing religious
discrimination occurred. But the employer argued that they met
their burden of reasonable accommodation by offering the
plaintiff six different alternatives, and that the plaintiff's
proposed accommodation caused an undue burden on the employer.
The court pointed to Ansonia Board of Education v. Philbrook,
479 U.S. 60, 68 and EEOC v. UPS, 94 F.3d 314 (7th Cir.1996) to
emphasize that Title VII does not require the employer to
provide accommodations that the employee desires. Here, out of
the 6 positions UAL offered Birdi, one involved customer
contact, two others paid more than his current position, and all
the positions offered the same benefits package. The court
stated that Birdi's refusal to accept any of these positions
because of his lack of face-to-face customer contact or conflict
with his schedule did not change the fact that UAL offered him
at least one reasonable accommodation?" The court held that the
reasonableness of the accommodations was not negated because
Birdi denied those preferences, and granted UAL's summary
judgment. 2002 WL 471999, 2.
"Undue Hardship" Under Title VII and FEHA
Both Title VII and FEHA provide that an employer does not have
to accommodate an employee's religious belief or observance if
to do so would constitute an "undue burden."
Under Title VII, the standard for proving an "undue burden" is
essentially a "de minimis" standard. The seminal case in which
the United States Supreme Court adopted this "de minimis"
standard was Trans World v. Hardinson, 432 U.S. 63 (1977). Some
critics have argued that this standard is far too deferential to
employers and that employers need only show minimal costs to
prove an "undue burden" in not providing religious
accommodation.
FEHA, on the other hand, has one definition for "undue burden"
which the Act states applies "unless a different meaning clearly
appears from the context." (Government Code Section 12926).
Specifically, FEHA defines "undue burden" as follows:
"Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the
following factors:
(1) The nature and cost of the accommodation needed.
AB 1964
Page 11
(2) The overall financial resources of the
facilities involved in the provision of the reasonable
accommodations, the number of persons employed at the
facility, and the effect on expenses and resources or the
impact otherwise of these accommodations upon the operation
of the facility.
(3) The overall financial resources of the
covered entity, the overall size of the business of a
covered entity with respect to the number of employees, and
the number, type, and location of its facilities.
(4) The type of operations, including the
composition, structure, and functions of the workforce of
the entity.
(5) The geographic separateness,
administrative, or fiscal relationship of the facility or
facilities. (Government Code Section 12926(t)).
FEHA regulations further incorporate this statutory definition
into the regulations governing reasonable accommodation of
religion. (2 C.C.R. Section 7293.3).
For the most part, case law has focused around the issue of this
definition of "undue hardship" mainly in the context of
discrimination on the basis of disability, not religion.
However, the statutory and regulation language cited above
support an argument that this is in fact the FEHA standard
applicable to religious accommodation.
The sponsors of this bill contend that there is confusion with
respect to the definitions of "undue hardship" under Title VII
as compared to FEHA. They argue that this confusion was
exacerbated in the Soldinger case cited above, which was a FEHA
case in which the court (although not addressing the "undue
hardship" issue) nonetheless referred in dicta to the "de
minimis" standard under Title VII. (51 Cal.App.4th 345, 371.)
The sponsors argue that this reference was incorrect and ignored
the FEHA statutory definition. Therefore, this bill clarifies
that the FEHA definition of "undue burden" applies in cases
involving religious discrimination.
ARGUMENTS IN SUPPORT :
The author states that this bill would correct certain
deficiencies in current law by clarifying that the FEHA
definition of undue hardship applies to the FEHA religious
AB 1964
Page 12
discrimination section (rather than the "de minimus"
standard under Title VII). This bill will also specify that
segregation is not a reasonable accommodation and that
religious clothing and religious hairstyles are explicitly
included as a religious belief or observance. The author
argues that, in doing so, this bill will provide clarity to
ensure that all religions receive equal protection under the
law and that employees are not put in a position where they
cannot perform their job functions because of their
religious belief.
This bill is sponsored by the Sikh Coalition, which writes
the following in support of this bill:
"Sikh Californians suffer high levels of employment
discrimination because of their Sikh identity, which
includes a turban, beard, and unshorn hair. According to a
research report issued by the Sikh Coalition in 2010, over
one in ten Sikhs in the San Francisco Bay Area reported
suffering discrimination in employment. The California
Department of Corrections and Rehabilitation refuses to
hire Sikhs to serve as security guards unless they remove
their religiously--mandated beards. Similarly, police
agencies in California have rejected requests to hire Sikh
police officers unless they remove their turbans. These
California law enforcement agencies refuse to hire Sikhs
despite decisions by both the United States Army and
Federal Protective Service to begin accommodating Sikhs in
government service.
The promise of AB1964 is that it will help eliminate the
false choice between one's faith and one's gainful
employment?
?AB1964 also addresses the critical issue of workplace
segregation. Some federal courts have interpreted federal
employment discrimination law which FEHA tracks closely
to allow for the segregation of visibly religious employees
(such as Sikhs, Jews, and Muslims) from customers and the
general public on the ground that such employees can still
technically practice their religion, albeit out of public
view. To uphold the integrative purpose of FEHA, AB1964
clarifies that an employer's accommodation of an employee's
religion is not reasonable if it requires an employee to be
segregated from customers or the general public.
AB 1964
Page 13
AB1964 is a job creating measure, designed to ensure equal
employment opportunity for all Californians, including
Sikhs who continue to encounter discrimination because of
their faith."
This bill, upon passage out of Labor Committee, is
double-referred to Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Agudath Israel of California
AJC Global Jewish Advocacy
American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Immigrant Policy Center
California Nurses Association
Church State Council
North American Religious Liberty Association-West
Sikh Coalition (sponsor)
Support, if Amended
Anti-Defamation League
Opposition
None on file.
Analysis Prepared by : Ben Ebbink/Meeti Sudame / L. & E. /
(916) 319-2091