BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1964 (Yamada)
As Amended June 18, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
TW
SUBJECT
Discrimination in Employment: Reasonable Accommodations
DESCRIPTION
This bill would expand the definition of "religious creed" in
the Fair Employment and Housing Act to include religious dress
or grooming practices, as defined. This bill would provide that
a reasonable accommodation for an individual's religious dress
or grooming practice is not reasonable if the accommodation
requires segregation of the individual from other employees or
the public. This bill also would provide that an accommodation
for religious belief, observance, or dress or grooming practice
is not required if it would result in a violation of any other
law prohibiting discrimination or protecting civil rights, as
specified.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
This bill, sponsored by The Sikh Coalition, would extend FEHA's
employment discrimination protections to include individuals who
(more)
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observe religious dress or grooming practices.
CHANGES TO EXISTING LAW
1. Existing law, the Fair Employment and Housing Act (FEHA)
prohibits discrimination in housing and employment on the
basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation.
(Gov. Code Sec. 12920 et seq.)
Existing law provides that "religious creed," "religion,"
"religious observance," "religious belief," and "creed"
include all aspects of religious belief, observance, and
practice. (Gov. Code Sec. 12926 (p).)
This bill would add an individual's religious dress practice
and religious grooming practice to the list of religious
considerations on which basis a person may not be
discriminated against in employment.
This bill would provide that "religious dress practice" shall
be broadly construed and includes the wearing or carrying of
religious clothing, head or face coverings, jewelry,
artifacts, and any other item that is part of the observance
by an individual of his or her religious creed.
This bill would provide that "religious grooming practice"
shall be broadly construed and includes all forms of head,
facial, and body hair that is part of the observance by an
individual of his or her religious creed.
2. Existing law prohibits, unless based upon a bona
fide occupational qualification, or, except where based upon
applicable security regulations, as specified, an employer to
refuse to hire or employ a person or to refuse to select a
person for a training program leading to employment or to bar
or to discharge a person from employment or from a training
program leading to employment, or to discriminate against a
person in compensation or in terms, conditions, or privileges
of employment because of a conflict between the person's
religious belief or observance and any employment requirement,
unless 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
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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. 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. (Gov. Code Sec. 12940(l).)
This bill would include in the above section, as part of
religious belief or observance, religious dress or grooming
practice.
This bill would provide that an accommodation of an
individual's religious dress or grooming practice is not
reasonable if the accommodation requires segregation of the
individual from other employees or the public.
This bill also would provide that an accommodation under the
above section is not required if it would result in a
violation of this part or any other law prohibiting
discrimination or protecting civil rights.
COMMENT
1. Stated need for the bill
The author writes:
AB 1964 strengthens protections of religious freedoms in the
workplace by clarifying that undue hardship, as defined in the
Definitions section of the Fair Employment and Housing Act,
will also apply to the Religious Discrimination section,
clearing up legal confusion of federal vs. state definitions
of "undue hardship". The bill would also specify that
religious clothing and hairstyles qualify as a religious
belief or observance and that segregating an employee from
customers or the public is not a reasonable accommodation of
an employee's religious beliefs. This bill ensures equal
employment opportunity for thousands of Californians who have
been relegated to second-class status in their jobs because of
their religious observances or appearance. This bill is
necessary to preserve the integrity of FEHA with respect to
religious accommodations.
The sponsor of this bill, The Sikh Coalition, writes:
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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 AB 1964 is that it will help eliminate the false choice
between one's faith and one's gainful employment.
2. Existing federal protections for religious practices
Under federal law, Title VII of the Civil Rights Act of 1964
(Title VII) provides individuals with protection from religious
discrimination in employment. (42 U.S.C.S. Sec. 2000e(j).) The
United States Equal Employment Opportunity Commission (EEOC),
which investigates and enforces employment discrimination claims
and is responsible for developing uniform standards, guidelines,
and policies defining the nature of employment discrimination,
provides a Compliance Manual for EEOC investigators and
employers regarding employment discrimination claims. With
respect to religious practices that are protected under Title
VII, the EEOC instructs that religious dress and grooming
practices are protected from discrimination under Title VII as
follows:
Unless it would be an undue hardship on the employer's
operation of its business, an employer must reasonably
accommodate an employee's religious beliefs or practices.
This applies not only to schedule changes or leave for
religious observances, but also to such things as dress or
grooming practices that an employee has for religious
reasons. These might include, for example, wearing
particular head coverings or other religious dress (such as
a Jewish yarmulke or a Muslim headscarf), or wearing certain
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hairstyles or facial hair (such as Rastafarian dreadlocks or
Sikh uncut hair and beard). It also includes an employee's
observance of a religious prohibition against wearing
certain garments (such as pants or miniskirts). (EEOC,
Compliance Manual, Section 12 - Religious Discrimination
(July 22, 2008) < http://www.eeoc.gov/policy/
docs/religion.html#_Toc203359534> Ŭas of June 13, 2012].)
The EEOC's Compliance Manual bases these religious dress and
grooming anti-discrimination policies on several cases:
EEOC v. American Airlines, Civil Action No. 02-C-6172 (N.D.
Ill.) (Order of Resolution filed September 3, 2002) resolving
claim on behalf of employee who was not hired as a passenger
service agent because she wore a hijab for religious reasons
in violation of the airline's since-changed uniform policy;
the airline's current uniform policy specifically contemplates
exceptions for religious accommodation of employees;
Webb v. City of Philadelphia, 2007 WL 1866763 (E.D. Pa. June
27, 2007) granting summary judgment to the employer, the court
ruled that the City of Philadelphia established as a matter of
law that it would pose an undue hardship to accommodate the
wearing of a traditional religious headpiece called a khimar
by a Muslim police officer while in uniform, in contravention
of the department's dress code directive; and
U.S. v. New York State Dep't of Corr. Servs., Civil Action No.
07-2243 (S.D.N.Y. settlement approved Jan. 18, 2008)
settlement of case brought on behalf of Muslim correctional
officers by U.S. Department of Justice providing that employee
requests for religious exemptions from uniform and grooming
requirements of state prison system would be determined on a
case-by-case basis, and allowing employees to wear religious
skullcaps such as kufis or yarmulkes if close fitting and
solid dark blue or black in color, provided no undue hardship
was posed. (EEOC, Compliance Manual, Section 12 - Religious
Discrimination (July 22, 2008)
Ŭas of June 13, 2012].)
California's employment discrimination provisions are provided
under the Fair Employment and Housing Act (FEHA), which is in
large part based upon Title VII. Further, "Ŭa]lthough the state
and federal antidiscrimination legislation 'differ in some
particulars, their objectives are identical, and California
courts have relied upon federal law to interpret analogous
provisions of the state statute.'" (Soldinger v. Northwest
Airlines, Inc. (1996) 51 Cal.App.4th 345, 367, fn. 9.) Title
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VII has been construed to provide employees with
anti-discrimination protection for the wearing of religious
dress and grooming, and this bill was recently amended to
conform the bill to these provisions.
3. Providing FEHA protection for an individual's religious dress
or grooming practices
FEHA makes it unlawful for an employer, a labor organization, or
employment agency to discriminate in employment, among other
things, on the basis of religious creed, which includes
religious practices. (Gov. Code Sec. 12926(p).) This provision
is enforced by the Department of Fair Employment and Housing.
This bill would clarify FEHA protection from employment
discrimination for an individual's religious dress or grooming
practices. This bill would provide that "religious dress" shall
be construed broadly and includes wearing or carrying religious
clothing, head or face coverings, jewelry, artifacts, and any
other item that is part of the observance by an individual of
his or her religious creed. This bill also would provide that
"religious grooming" shall be construed broadly and includes all
forms of head, facial, and body hair that is part of the
observance by an individual of his or her religious creed.
AB 1180 (Hayden, Ch. 1151, Stats. 1985) made it an unlawful
employment practice for an employer to discriminate against an
applicant or employee because of his or her religious observance
unless the employer demonstrates that it has explored all
available means of accommodating the religious observance
without causing undue hardship on the conduct of business.
Although AB 1180 clarified religious observance under FEHA,
religious practice continues to be a basis for employment
discrimination against individuals of religious faiths.
In fact, religion-based employment discrimination is on the
rise. In 2010, the Department of Fair Employment and Housing
received over 540 religious discrimination cases. (Dept. of
Fair Empl. & Hous., Employment Cases - Count of Bases (Dec. 22,
2011)
Ŭas of June 12, 2012].) Further, the U.S.
Equal Opportunity Employment Commission reported receiving a
total of 4,151 religion-based discrimination claims in 2011,
which represented an increase in religion-based claims of more
than 9.5 percent from the prior year and was the largest
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increase of any discrimination protected category. (U.S. Equal
Empl. Opp. Comm., Religion-Based Charges
Ŭas of June 12, 2012].)
In addition, the Sikh community, in particular, reports an
increase in religion-based employment discrimination. According
to a survey of Sikhs in the San Francisco Bay Area, 12 percent
of respondents reported religion-based employment
discrimination. (Sikh Coalition Bay Area, Civil Rights Report
2010 Ŭas of June 12,
2012] at p. 21.) The Sikh religion requires men to wear a
turban, beard, and unshorn hair. As such, Sikh men are
particularly vulnerable to religious discrimination due to their
religious practices.
Sikh practitioners are not alone in their religious practices
that require religious dress or grooming practices. Indeed,
many other religions, including Islam, Judaism, Wicca, and
Buddhism, also require their followers to maintain certain
religious dress or grooming practices. The California
Legislature has declared that, as a matter of public policy, it
is necessary to protect and safeguard the right and opportunity
of all persons to seek, obtain, and hold employment without
discrimination or abridgment on account of religious creed.
(Gov. Code Sec. 12920.) Additionally, the California Code of
Regulations specifies that dress standards or requirements for
personal appearance shall be flexible enough to take into
account religious practices. (Cal. Code Regs., tit. 2, sec.
7293.3, subd. (c)(2).) As such, employees following religious
practices, including religious dress and grooming, should be,
and arguably are already, protected from religious-based
discrimination.
4. Recent case demonstrates existing problem of religious
discrimination
As discussed above, this bill would provide protection for an
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individual's religious grooming practices, consistent with
federal law under Title VII that has been construed to protect
religious grooming, including hairstyles and beards, based upon
various employment discrimination cases throughout the U.S.
In California, a recent example of employment discrimination
based on religious grooming is the case of Oberoi v. Department
of Corrections and Rehabilitation, 34-2009-00054595 (Sacramento
Superior Court, filed July 31, 2009). In Oberoi, a Sikh man
applied for work as a security guard at the California
Department of Corrections and Rehabilitation (CDCR), which
refused to allow Mr. Oberoi to continue the application process
because he would not shave his beard. The CDCR claimed security
guards at times are required to wear a gas mask, which must
closely fit to the employee's face, and facial hair is not
allowed unless there is a verified medical condition for which
an individual is unable to shave. However, in the Sikh faith,
men are not allowed to shave their beard.
Mr. Oberoi had worked for 26 years in the Indian Navy, where he
rose to the rank of commander, and worked for nine years as a
captain in India's merchant marines. He had worn gas masks and
respirators in the past without issue by rolling up his beard.
As such, the CDCR may not have had to make any reasonable
accommodation to employ Mr. Oberoi, but they refused to even let
him demonstrate his ability to wear a gas mask. Mr. Oberoi
persisted for six years in his pursuit to be both employed as a
security guard and continue his ability to practice his faith.
This case was settled last year, but the potential for future
employment discrimination based on religious grooming persists.
It should be noted that, although this bill specifically
includes within the definition of "religious grooming" all forms
of head, facial, and body hair, there are many types of
religious grooming practices, including the wearing or not
wearing of makeup, that would be considered as protected under
this bill.
5. Providing that segregation of employee is not a reasonable
accommodation
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This bill would provide that a reasonable accommodation of an
individual's religious dress or grooming practice is not
reasonable if the accommodation requires segregation of the
individual from other employees or the public. FEHA requires an
employer to make a reasonable accommodation for the religious
creed of an employee unless the employer can demonstrate that
the accommodation would impose an undue hardship. (Gov. Code
Sec. 12940(l).) Reasonable accommodation includes job
restructuring, reassignment, modification of work practices, or
allowing time off in an amount equal to the amount of
non-regularly scheduled time that the employee has worked in
order to avoid a conflict with his or her religious observances.
(Gov. Code Sec. 12940(o)(2).) Several factors are considered
when determining an "undue hardship" for an employer. These
include: size and number of employees of the facility and
employer, type of operation, composition and structure of the
workforce, the nature and cost of the accommodation, whether or
not the employer was given reasonable notice, and whether there
is any reasonable alternative. (Gov. Code Sec. 12940(t).)
The Sikh Coalition argues that "Ŭs]ome 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."
This bill would respond to the holding in Birdi v. United
Airlines Corp. (D. Ill. Mar. 26, 2002, No. 99 C 5576) 2002 U.S.
Dist. LEXIS 9864, which held that a Sikh man could be segregated
away from public view for wearing a Dastar (turban), as required
by his religious faith, because the employer offered the
employee six different alternatives from his customer service
position that the employee considered inadequate. The court
reasoned that the employer was not required under Title VII to
"provide the accommodation that the employee desires; any
reasonable accommodation is sufficient." (Id. at p. 4; emphasis
in original.)
In support of this bill, several individuals write:
Currently Muslims are very unpopular among many people. It is
common for men of this faith to wear unshaved beards. Women
Muslims often wear scarves or other head dresses that help
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people identify them as Muslims. Hindu men tend to wear
turbans and the women also often wear scarves over their
heads. Ironically, many people mistakenly assume that Hindus
Ŭare] Muslim based on their clothing.
There used to be a time when it was common to discriminate
against Catholics who wore crucifixes as an expression of
their faith, while Jews, who wore the Star of David, faced
similar discrimination. Some of that still occurs, but most
people now understand that such discrimination is totally
unacceptable.
The same should be true of other faiths. Our nation's and
state's guarantee of freedom of religion is a hollow promise
if it means freedom of religion for only certain faiths.
AB 1964 renews our commitment to freedom, of religion which is
a central element of what makes our nation so great."
The Birdi case demonstrates that, although there may be
accommodations an employer can make for the employee to continue
the practice of the employee's religious faith, segregating the
employee from duties otherwise specifically sought by the
employee, such as the duty to interact with the public and other
employees, is contrary to the public policy of religious freedom
established in California under FEHA.
6. Health and safety concerns regarding religious dress or
grooming practices
In a prior version of the bill, the list of considerations for
an undue burden on an employer for reasonable accommodation
included health and safety requirements of a facility. That
provision was stricken from the bill as it arguably was
overbroad and would not only apply to religious dress and
grooming, but also to disability accommodations. There already
exists a rich history of decisions and substantial statutory
authority that provide guidance to employers regarding health
and safety concerns related to employer practices.
For example, existing law requires employers to maintain safe
and healthful working conditions for employees. (Lab. Code Sec.
6300 et seq.) Existing law also provides that an employer has
an affirmative defense to employment discrimination where the
employer has a bona fide occupational qualification or business
necessity that requires a certain practice for the safe and
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efficient operation of the business. (Cal. Code Reg. Sec.
7286.7.) Further, in Fitzpatrick v. City of Atlanta (11th Cir.
1993) 2 F.3d 1112, the court recognized "that protecting
employees from workplace hazards is a goal that, as a matter of
law, has been found to qualify as an important business goal for
Title VII purposes." (Id. at p. 1119.) However, the
Fitzpatrick court observed that "merely asserting a safety
rationale does not suffice to prove the defense." (Id.)
Accordingly, an employer may assert a health and safety defense
to a discriminatory practice, but the employer must show, on the
facts of each particular case, that the employer's practice was
non-discriminatory and that no reasonable accommodation could be
made for the employee.
Further, this bill will not require employers to hire or retain
individuals if they cannot perform their essential duties or if
they will pose a health or safety risk to others. It merely
requires reasonable accommodations be made for an individual's
religious dress or grooming practice. As such, the undue burden
consideration for health and safety requirements in the prior
version of the bill is unnecessary and is provided for under
existing law.
Support : Agudath Israel of California; American Jewish
Committee; American Civil Liberties Union of California;
American Federation of State, County and Municipal Employees,
ALF-CIO; Anti-Defamation League; California Employment Lawyers
Association; California Immigrant Policy Center; California
Nurses Association; Church State Council; Consumer Attorneys of
California; Council on American-Islamic Relations - California
Chapter; Hindu-American Foundation; Japanese American Citizens
League; North American Religious Liberty Association - West;
four individuals
Opposition : None Known
HISTORY
Source : The Sikh Coalition
Related Pending Legislation : None Known
Prior Legislation : AB 1180 (Hayden, Ch. 1151, Stats. 1985) See
Comment 3.
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Prior Vote :
Assembly Floor (Ayes 63, Noes 6)
Assembly Committee on Appropriations (Ayes 14, Noes 1)
Assembly Committee on Judiciary (Ayes 9, Noes 0)
Assembly Committee on Labor and Employment (Ayes 6, Noes 0)
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