Strictly Business

Wednesday, Dec 12 2012 12:00 PM

ROBIN PAGGI: New law raises employers' responsibility in religious accommodations

BY ROBIN PAGGI Contributing columnist

Religious discrimination claims against employers have steadily increased over the last decade, and a new law recently signed by Governor Brown could lead to even more claims in the New Year. Many claims allege employers failed to accommodate employees' religious beliefs and/or practices. In this second part of a three-part series, we'll look at reasonable accommodations and how the new law affects the employer's responsibility to provide them.

Title VII of the Civil Rights Act and California's Fair Employment and Housing Act stipulate that employers have the affirmative duty to reasonably accommodate an employee's religious beliefs and/or observations unless doing so would result in an undue hardship to the employer. Common religious accommodations in the workplace have included (among others):

* Scheduling changes. For example, allowing an employee to come to work early in order to leave early to attend religious services.

* Shift swaps. Allowing an employee to swap shifts with another employee so as to avoid working on their Sabbath.

* Changing job tasks. Relieving an employee of a task that conflicts with his or her religious beliefs, such as raising the American flag.

* Using the workplace for a religious observance. For example, allowing the employee to use a quiet area for prayer during break time.

* Making an exception to dress standards and grooming policies to take into account religious practices.

A reasonable accommodation is intended to eliminate the conflict between employment requirements and religious practices. State and federal laws say the accommodation is considered to be unreasonable if it imposes more than a de minimus (i.e. minimal) cost to the employer.

Two similar cases demonstrate that what can be considered to be a reasonable accommodation in one situation can be deemed an undue hardship in another. In the case of EEOC v. Alamo Rent-A-Car, the employee, a rental agent, was allowed for many years to wear a hijab at work during the holy month of Ramadan. After 9/11, she was told she could wear her hijab, but not at the front counter as it might offend customers. The employee continued to wear her hijab at the front counter anyway, was terminated, sued and won.

According to a summary of the case on primerus.com, the court determined the company had a duty to accommodate the employee's religious practice and could not rely on how it thought customers might react to her hijab to determine that the accommodation was unreasonable.

However, in the case of Webb v. City of Philadelphia, a Muslim female police officer's request to wear a khimar over her uniform was denied and then she was disciplined for wearing it anyway. She sued and lost because the court agreed with the police commissioner's explanation that "it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining . . . [the department's] uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias" and that the accommodation would impose more than a de minimis cost to the employer, according to primerus.com.

Now, this is where things are going to get a bit tougher for California employers. AB1964, the new law signed by Governor Brown that goes into effect Jan. 1, increases employers' responsibility to provide a reasonable accommodation by amending the FEHA in the following ways:

* It defines "undue hardship" to mean an action requiring significant difficulty or expense instead of the de minimus standard;

* It specifies "religious dress practice" shall include "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." Additionally, "religious grooming practice" shall include "all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed"; and,

* It specifies that an accommodation of an individual's religious dress practice or religious grooming practice that would require that person to be segregated from the public or other employees is not a reasonable accommodation.

Robert Jones, an attorney with the national law firm Ogletree Deakins, says that, "Employers should anticipate a significant increase in claims, especially given the broad language of the statute and the lack of any significant precedential holdings that employers can rely upon." The final segment of this series will address how employers can protect themselves from religious discrimination claims.

Robin Paggi is the Training Coordinator at Worklogic HR Legal Solutions. She can be reached at rpaggi@worklogiclegal.com. These are her opinions, not necessarily those of The Californian.

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