Religious belief is one of several categories of protection in employment discrimination law. These categories represent characteristics that employers must not use to single out employees or expose them to unfair treatment when making employment decisions. Other categories commonly found in state and federal law include age, race, color, national origin, sexual orientation and gender.
Religious discrimination can take a number of forms. Employees have complained of being forced to work on specific religious holidays, being subjected to patterns of religious proselytizing, being forbidden to hang religious paraphernalia in work spaces or being forbidden to wear religious garb, such as the Muslim hijab.
Religion based employment discrimination claims are on the rise in California. Last year, the DFEH received almost 20,000 employment discrimination complaints, 4.6% of which were based on religion. This is almost double the number of complaints involving religious discrimination at work in 2011.
The increase is consistent with religious discrimination complaints on the rise across the country. According to the Wall Street Journal, religious based discrimination complaints have doubled over the last decade and a half, growing faster than claims based on sex, age, race and disability.
Fair Employment and Housing Act
California’s Fair Employment and Housing Act (FEHA) forbids the practice of discrimination against workers on the basis of religion in hiring, discharge, selection for training, and in the terms and conditions of employment, including compensation.
An employer who has based an employment decision on a religious characteristic may not do so unless they have explored “any available reasonable alternative means of accommodating the religious belief or observance.” If an employer finds that accommodating religious beliefs or observances would cause “undue hardship” on the business, the employment decision may be considered lawful under the Act.
FEHA also prohibits employee harassment on the basis of religion, protection which stretches to current employees, applicants as well as independent contractors. Harassment, as defined under the Act, applies when an employer knows or should have known of the harassing conduct and fails to take “immediate and appropriate corrective action.”
Workplace Religious Freedom Act
The California Workplace Religious Freedom Act amended the FEHA in 2012 to provide the religious accommodation requirement. According to the amendment, only “sincerely held” religious beliefs must be accommodated. This includes all aspects of religious belief, observances and practices as well as the observance of a Sabbath or other religious or holy days.
The amendment also put in place a broad interpretation of protected “religious dress practice” to include the wearing or carrying of religious clothing, head or face covering, jewelry, artifacts or any other item that is part of the observance of religious creed. The amendment also grants protection for reasonable amounts of travel for the practice of religious beliefs.
Proving Religious Discrimination
In establishing the primae facie case for religious discrimination, an employee must establish four elements:
- A sincerely held religious belief and practice that conflicts with a work duty; and
- The employee informed his/her employer of the belief and conflict; and
- The belief conflicted with an employment requirement; or
- The employer took an adverse action against the employee because of the conflict.
Once the primae facie case is established, the burden shifts to the employer to show:
- One or more elements of the employee’s primae facie case is not true,
- The employer offered reasonable accommodation; or
- The employer could not accommodate due to undue hardship.
According to FEHA, the definition of ‘religion’ includes religious traditions and beliefs or sincerely held practices that occupy in the employee’s life “a place of importance to the level of that of traditionally recognized religions.” It’s a broad definition that can even include practices espoused by an employee that do not necessarily coincide with the traditional practices of a certain religion.
Proving Religious Harassment
To prove religious harassment, an employee must establish that an employer failed to prevent a hostile work environment or that an employer knew or should have known of the harassment. It is also important to show that the harassment was sufficiently severe or pervasive enough to meet the requirements of the law.
This means that both single incidents or patterns of harassment based on religious beliefs or practices could create a hostile work environment. For instance, courts ruled in 2007 in Azimi v. Jordan’s Meats, Inc. that a hostile work environment existed where a supervisor and co-workers remarked that they hated Muslims.
Proving religious harassment also requires a close look at who’s doing the harassing. According to California law, an employer can be held liable for a supervisor’s harassing behavior even if the employer was not aware of the harassment. If the harassment was not done by a supervisor, the employee must prove that the employer knew or should have known of the harassment and failed to prevent it.
California Discrimination Law Provides Guidance
California law governing religious discrimination and harassment is broad and accommodating. It’s designed to protect workers from discrimination based on religious belief and can provide for religious dress, observance of religious holy days as well as many more religious practices.
As religion based claims of employment discrimination continue to rise, both across the country and in the state of California, FEHA provisions are sure to gain increasing importance as well as provide a source of much needed guidance for employers wishing to avoid liability.