BILL ANALYSIS �
AB 1964
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1964 (Yamada) - As Amended: April 16, 2012
As Proposed to be Amended
SUBJECT : RELIGIOUS FREEDOM AND ACCOMMODATION
KEY ISSUE : SHOULD THE NON-DISCRIMINATION OBLIGATIONS OF THE
FAIR EMPLOYMENT AND HOUSING ACT BE CLARIFIED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This measure would illuminate the rights of religious
practitioners by clarifying that protected religious observance
includes wearing religious clothing and hairstyles, and that
these practices are entitled to reasonable accommodation at
work, although not in a manner that would impose undue hardship
on employers. Sponsored by the Sikh Coalition, the bill would
expressly provide that protected religious observance includes
wearing religious clothing and hairstyles. The bill also
explicitly incorporates the definition of "undue hardship" under
the Fair Employment and Housing Act, and clarifies that
reasonable accommodation does not include segregation of
employees or violating the civil rights of others. The bill has
no opposition.
SUMMARY : Clarifies the rights of religious minorities under the
Fair Employment and Housing Act (FEHA). Specifically, this
bill :
1)Clarifies that religious belief or observances protected under
existing law includes 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.
AB 1964
Page 2
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)Clarifies that an accommodation of an individual's religious
clothing or religious hairstyle is not reasonable if the
accommodation requires segregation of the individual from
other employees or members of the public.
4)Expressly provides that accommodation of religious beliefs is
not required if it would result in a violation of the FEHA or
any other law prohibiting discrimination or protecting civil
rights.
EXISTING LAW :
1)Prohibits an employer or other entity covered under FEHA from
discriminating against an individual on the basis of
"religious creed." (Government Code section 12940(a).)
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. (Government Code
section 12940(l).)
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. (Government
Code section 12940(l).)
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
AB 1964
Page 3
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. (Government Code section 12940(l).)
COMMENTS : The author explains the reason for the bill as
follows: "AB 1964 would clarify that the FEHA definition of
undue hardship applies to the FEHA religious discrimination
section. 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. In doing so, this bill will provide
clarity to ensure that all religions receive equal protection
under law and employees aren't put in a position where they
can't perform their job because of who they are."
The sponsor of this measure, the Sikh Coalition, 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
AB 1964
Page 4
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.
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.
Specifically, this bill would expressly provide that wearing
religious clothing or a religious hairstyle constitutes a
religious belief or observance protected under the law. Second,
the bill attempts to clarify that the existing definition of
"undue hardship" applies to religious accommodation cases under
FEHA. Third, the bill clarifies that certain forms of
accommodation are not reasonable - if an accommodation of an
individual's religious clothing or religious hairstyle requires
segregation of the individual from other employees or members of
the public, or if an accommodation would result in a violation
of the FEHA or any other law prohibiting discrimination or
protecting civil rights.
Recognizing That Religious Clothing and Hairstyles Are Forms of
Religious Belief. Discrimination on the basis of religion is
generally prohibited both under federal law under Title VII of
the federal Civil Rights Act of 1964 and under California's Fair
Employment and Housing Act (FEHA). In addition to prohibiting
different treatment of employees and applicants on the basis of
religion, both laws require employers to reasonably accommodate
the religious belief or observance of an employee, unless to do
so would result in an undue hardship on the employer.
No reported FEHA court decision or regulations appear to address
clothing or hairstyles as forms of religious observance. Cases
under the related federal law, however, have long recognized the
obvious principle that some well-known religious beliefs involve
headwear and other garments and particular hairstyles, including
facial hair. For example, in EEOC v. Abercrombie & Fitch
Stores, 798 F.Supp.2d 1272 (2011) the plaintiff, a young Muslim
AB 1964
Page 5
woman who wore a headscarf (hijab) 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. Abercrombie refused, arguing that it had a strict
"looks policy" in order to present a model appearance consistent
with the clothes sold at the store. The store declared that
creating a religious exception for the plaintiff would
negatively impact the brand. The court recognized that wearing
a hijab was a tenet of the plaintiff's faith and rejected the
employer's contention that it could not accommodate her based on
hypothetical assumptions or speculation. (See also Smith v.
Pyro Mining, 827 F.2d 1081, 1086 (6th Cir. 1987); Tooley v.
Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir, 1981).)
This bill would make explicit what is already surely implicit in
the FEHA, that religious clothing and hairstyles may be
legitimate religious practices.
This Bill Clarifies That California Law Is More Protective of
Religious Observance Than Federal Law. The FEHA requires
employers and other covered entities to reasonably accommodate
conflicts between a 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 but is
unable to do so without undue hardship on the conduct of the
business. Reasonable accommodations may take many forms
depending on the circumstances, but can include job
restructuring, modified work schedules, and job reassignments.
Both employers and employees have an obligation to undertake an
interactive process and make good faith efforts to explore
alternatives.
Federal and state "undue hardship" definitions differ with
respect to religious accommodation issues. Federal law follows
a narrow U.S. Supreme Court interpretation of Title VII, holding
that no accommodation is required if it results in more than a
"de minimis" impact on the employer. (Trans World Airlines,
Inc. v. Hardison, 432 U.S. 63 (1977) 432 U.S. 63.)
By contrast, California's FEHA defines undue hardship as an
action requiring "significant difficulty or expense," when
considered in light of several factors, including the overall
financial resources of the facilities involved and the number of
AB 1964
Page 6
employees. Consistently with the plain language of the statute,
FEHA regulations further incorporate this statutory definition
into the regulations governing reasonable accommodation of
religion. (2 C.C.R. Section 7293.3.) Case law under the FEHA
has focused around this definition of "undue hardship" in the
context of persons with disabilities, not religion. However,
the statute and regulations make clear that this is in fact the
existing FEHA standard applicable to religious accommodation.
Despite differences between state and federal laws, courts have
not always been clear in distinguishing between them. For
example, the court in Soldinger v. Northwest Airlines, 51
Cal.App.4th 345 (2nd Dist. 1997) indicated in dicta that the
Hardison standard of "de minimus" burden may apply to claims
under the FEHA, although the court went on to find that the
employer had not produced evidence to demonstrate its
contentions on the facts of that case.
By cross-referencing the existing definition of "undue
hardship," this bill would clarify that the existing defined
term applies to reasonable accommodation of religion, just as it
does to disabilities.
Segregation And Violation of The Civil Rights of Others Would
Not Be Reasonable Accommodations Under This Bill. Supporters of
this bill, including the Sikh Coalition, are concerned to make
clear that segregation of religious clothing and hairstyles is
not an appropriate accommodation.
Their concern apparently grows out of a case under federal law
that resulted in an unpublished decision, Birdi v. UAL, 2002 WL
471999 (N.D. Ill. 2002). 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
summary judgment, the court and the employer agreed that Mr.
Birdi met his prima facie burden of showing religious
discrimination. However, the employer argued that it met its
burden of reasonable accommodation by offering the plaintiff six
different alternatives, and that the plaintiff's proposed
AB 1964
Page 7
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. Of the six 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.
This bill would address the issue of segregating an employee
from public contact because of his or her religious clothing or
hairstyle, although it would not upset existing law to the
effect that an employer is simply required to offer a reasonable
accommodation - not the accommodation preferred by the employee,
or any other specific accommodation.
Author's Clarifying Amendments . To better capture the intent of
the measure to address nondiscrimination and accommodation of
religion, not accommodation of disabilities, and to otherwise
conform and revise the various terms, the author proposes the
following constructive amendments:
1)Add the following cross reference at the end of the sentence
on page 14,line 15:
"as defined in subdivision (u) of Section 12926."
2)Add the following paragraphs to subdivision (1) of section
12940:
(2) An accommodation of an individual's religious clothing or
religious hairstyle is not reasonable if the accommodation
requires segregation of the individual from other employees or
members of the public.
(3) No accommodation is required under this subdivision if it
would result in a violation of this part or of any other law
prohibiting discrimination or protecting civil rights,
including but not limited to Section 51(b) of the Civil Code
and section 11135 of the Government Code.
3)In section 12926(u) on page 8, change the term "religious
AB 1964
Page 8
faith" to "religious creed" to be consistent with existing
usage.
4)Clarify the definition of "religious creed" on page 7, lines
4-6 by cross referencing religious clothing and hairstyles as
follows:
(p) "Religious creed," "religion," "religious observance,"
"religious belief," and "creed" include all aspects of
religious belief, observance, and practice, including
wearing religious clothing or a religious hairstyle.
5)Delete lines 1-4 on page 6 as follows:
(6) The safety and 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
accommodation.
6)Add the following co-authors: Assemblymembers Allen, Cedillo,
Dickinson, Fong and Lowenthal.
REGISTERED SUPPORT / OPPOSITION :
Support
Sikh Coalition (sponsor)
Agudath Israel of California
American Jewish Committee
ACLU
American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Immigrant Policy Center
California Nurses Association
Church State Council
Council on American-Islamic Relations - California Chapter
North American Religious Liberty Association - West
Opposition (as proposed to be amended)
None on file
AB 1964
Page 9
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334