BILL ANALYSIS �
AB 1964
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Date of Hearing: May 16, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1964 (Yamada) - As Amended: April 30, 2012
Policy Committee: Labor and
Employment Vote: 6-0
Judiciary 9-0
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill makes the following changes to the Fair Employment and
Housing Act (FEHA) with regard to religious accommodations in
employment:
1)Defines "wearing religious clothing or a religious hairstyle"
to be broadly construed and include all of the following:
a) Wearing religious apparel that is part of the observance
of the religious creed practiced by the individual.
b) Wearing jewelry or an ornament that is part of the
observance of the religious creed practiced by the
individual.
c) Carrying an object that is part of the observance of the
religious creed 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 creed practiced by the individual.
2)Amends the definition of "religious creed," "religion,"
"religious observance," "religious belief," and "creed" to
include the practice of wearing religious clothing or a
religious hairstyle.
3)Specifies 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 the public.
4)Specifies an accommodation is not required if it would result
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in a violation of this part or any other law prohibiting
discrimination or protecting civil rights.
FISCAL EFFECT
Minor, absorbable costs to FEHA to implement this measure.
COMMENTS
1)Purpose . According to the author, "�This bill clarifies] 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."
2)Background . FEHA prohibits discrimination in employment on the
basis of specified factors, including, race, national origin,
sex, age, disability, and sexual orientation.
Statute also 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.
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.
Existing law defines "religious creed," "religion," "religious
observance," "religious belief," and "creed" to include all
aspects of religious belief, observance and practice.
3)The segregation of religious clothing and hairstyle is not an
appropriate accommodation under this bill . Mr. Birdi, a Sikh
man, filed a lawsuit in federal court alleging religious
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discrimination under federal Title VII because he was
prevented from wearing his turban at work as a customer
service representative by his employer, UAL. UAL offered Mr.
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.
On summary judgment and in an unpublished decision, Birdi v.
UAL, 2002 WL 47999 (N.D. Ill. 2002), the court and the
employer agreed that Mr. Birdi met his burden of showing
religious discrimination. UAL, however, argued that it met its
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
federal district court cited 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 Mr. 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 Mr. 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 clearly state the segregation of religious
clothing or hairstyle is not an appropriate accommodation by
an employer.
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081