Religious Discrimination Law Defense Lawyer for Employers
Our Attorneys Defend Employers Against Accusations of Religious Discrimination
Definition. California law prohibits an employer or labor organization from discriminating against an employee on the basis of religious beliefs or creed. (Gov. Code, § 12940.)
Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of their protected characteristic. In these kinds of cases, the employer’s actions must be motivated by discriminatory intent. (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 737.)
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Laws Protecting Against Racial Discrimination
The California statute prohibiting race discrimination is the Fair Employment and Housing Act (“FEHA”). (Gov. Code, § 12940, et seq.)
The federal counterpart to FEHA, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.), also protects against employment discrimination based on race.
Because FEHA and Title VII of the Federal Civil Rights Act of 1964 have the same anti-discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)
Example
It is illegal for an employer to fire or refuse to hire someone because of that person’s religion. Paula, a practicing muslim, claims that Dan wrongfully discriminated against her. To establish this claim, Paula must prove:
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- That Dan was a covered employer;
- That Paula was an employee of Dan;
- That Dan fired Paula and that Paula’s religion was a substantial motivating reason for Dan’s decision to fire her; and
- That Paula was harmed and that Dan’s conduct was a substantial factor in causing Paula’s harm.
Element 1: Covered Employer
An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)
Covered: Agents of Covered Employers
An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)
To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)
Covered: State, Cities, and Political or Civil Divisions
The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)
Covered: Labor Organizations
A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)
A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)
Covered: Individual Employees (Coworkers/Supervisors)
An employee of an entity subject to the FEHA is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).)
Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.
Not covered: Nonprofit Religious Associations and Corporations
Nonprofit religious associations and corporations are not covered employers. (Gov. Code, § 12926, subd. (d)(1).)
Religious Creed
Religious creed includes any traditionally recognized religion, as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of a traditionally recognized religion. (Code Regs. tit. 2, § 7293.1.)
Religious Beliefs
A religious creed encompasses moral or ethical beliefs of right and wrong that are sincerely held with the strength of traditional religious views. (Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39.)
Belief Against Participating in Construction of Nuclear Power Plant is Religious Creed
A sincerely held belief against participating in the construction of a nuclear power plant was a religious creed, and it justified refusal to work on the plant’s construction. (Best v. California Apprenticeship Council (1984) 161 Cal.App.3d 626.)
Veganism is Not a Religious Creed
A vegan denied an employment opportunity for refusing to be vaccinated with the mumps vaccine failed to show discrimination in violation of the California Fair Employment and Housing Act. The court held that veganism was not a religious creed. (Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39.)
Religious Beliefs Could Prohibit Postal Clerks from Processing Draft Registration Forms
Religious beliefs of post office clerks could prohibit them from processing draft registration forms. (American Postal Workers Union v. Postmaster General (9th Cir. 1986) 781 F.2d 772.)
Sabbath or Other Religious Holy Days
Religious beliefs or observances include, but are not limited to, observances such as a Sabbath or other religious holy days. (Gov. Code § 12940, subd. (j).)
Examples of Protected Practices
A “protected practice” is a religious practice that must be accommodated by an employer unless the employer can demonstrate that the accommodation would impose an undue hardship. (Code Regs. tit. 2, § 7293.3.)
Facial Hair Can Be a Protected Practice
Wearing beards can be a protected practice. (Bhatia v. Chevron U.S.A., Inc. (9th Cir. 1984) 734 F.2d 1382.) (employee was member of Sikh religion which proscribes cutting or shaving of any body hair).
Nonpayment of Union Dues Can Be a Protected Practice
Nonpayment of union dues can be a protected practice. (International Asso. of Machinists & Aerospace Workers, Lodge 751 v. Boeing Co. (9th Cir. 1987) 833 F.2d 165.) (employee’s personal study of bible led her to oppose union on religious grounds).
Use of Peyote Can Be a Protected Practice
Use of the drug peyote can be a protected practice. (People v. Rubin (2008) 168 Cal.App.4th 1144 citing (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) 546 U.S. 418).)
Atheist Beliefs Are a Protected Practice
Atheist beliefs are a protected practice. (Young v. Southwestern Savings & Loan Assoc. (5th Cir. 1975) 509 F.2d 140.)
Ku Klux Klan Is Not a Protected Practice
Membership in the Ku Klux Klan is not a protected practice. (Slater v. King Soopers (1992) 809 F.Supp. 809 Bellamy v. Mason’s Stores, Inc., 368 F. Supp. 1025, 1028-29 (E.D. Va. 1973).
Conversion Ceremonies
An employer must give the employee time off to attend a conversion ceremony. (Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433.) (wife converting to Judaism).
Element 2: Protected Employee
Employees of all religious creeds are protected under California law. (Code Regs. tit. 2, § 7293.1.)
Protected: Employees
An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)
Covered: Temporary Workers
Temporary workers are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)
Covered: Job Applicants
California law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)
Covered: Unpaid Interns
Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)
Not Protected: Volunteers
Volunteers are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)
Not Protected: Family Members
Person employed by their parents, spouse, or child are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)
Not Protected: Independent Contractors
Independent contractors are not protected under FEHA because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)
Element 3: Adverse Treatment or Failure to Accommodate
A person may not be denied employment benefits because of his or her religious creed, or lack of religious creed. (Code Regs. tit. 2, § 7293.1.)
“Adverse employment action” is a shorthand expression for the kind, nature, or degree of action against an employee that is enough to state a claim. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) Generally, the discrimination must adversely and materially affect the terms, conditions, or privileges of plaintiff’s employment. (Gov. Code, § 12940, subd. (a).)
An adverse employment action is interpreted liberally by the court under a case-by-case analysis, and it must be substantial. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1053-1043.) Additionally. an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Ibid.)
Conditions of Employment
An employer cannot discriminate against an employee because of his or her religious creed by refusing to hire or employ the person, or by refusing to select the person for a training program leading to employment, or by discharging the person from employment or the training program. (Gov. Code, § 12940, subd. (a).)
Cannot Discriminate in Compensation
An employer cannot discriminate against a person because of his or her religious creed in compensation or in terms, conditions or privileges of employment. (Id.)
Reasonable Accommodation
The employer must accommodate an employee’s religious creed by allowing him or her reasonable time necessary for travel before and after a religious observance. (Id. § 12940, subd. (j).) Reasonable accommodation includes, but is not limited to, job restructuring, job reassignment, modification of work practices, and scheduling changes. (Code Regs. tit. 2, § 7293.3(a).) The reasonableness of the employer’s efforts to accommodate is determined on a case-by-case basis; what is reasonable for one employee may not be reasonable for another. (Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345.)
Examples of Reasonable Accommodation
Allowing an employee to take a day off after a religious ceremony to defuse the effects of peyote was considered a reasonable accommodation. (Toledo v. Nobel-Sysco, Inc. (10th Cir. 1989) 892 F.2d 1490.)
Request to Take a Day Off During Passover is Reasonable
A Jewish employee’s request to take a day off during Passover was held to be a “reasonable accommodation” which the employer failed to provide. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345.)
Transferring Position to Accommodate Request Off Work for the Sabbath is Reasonable
A transfer to a lower paying position to accommodate an employee’s need to be off work for the Sabbath was a reasonable accommodation. (Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233.)
Overtime Pay Not Required to Reasonably Accommodate
However, an employer need not pay overtime to other employees to accommodate an employee’s Sabbath observance. (Id.)
Employer Does Not Have to Accept Employee’s Suggested Accommodation
Any reasonable accommodation offered to an employee before litigation commences satisfies the employer’s burden. The employer is not required to accept the employee’s suggested accommodation when the employer has offered a reasonable accommodation or has shown that the employee’s proposed accommodations would cause an undue hardship. (Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345.)
Determining if Accommodation Would Impose an Undue Hardship on an Employer
In determining whether an accommodation would impose an undue hardship on an employer, the court will consider the following factors: (1) the size of the relevant facility with respect to the number of employees and the size of the budget; (2) the overall size of the employer with respect to the number of employees, number of facilities and the size of the budget; (3) the type of the facility’s business operations, including the composition of the work force; (4) the nature of the employer’s overall business operation; (5) the nature and cost of the accommodation involved; (6) the reasonableness of the notice to the employer regarding the need for accommodation; and (7) reasonable alternative means of accommodation. (Code Regs. tit. 2, § 7293.3(b).)
Trading Shifts Was Not an Undue Hardship
Requiring other employees to trade shifts to accommodate one employee was not an undue hardship because shift scheduling was not governed by a collective bargaining agreement and the employer could not show that trading shifts would discriminate against other employees. (Opuku-Boateng v. California (9th Cir. 1996) 95 F.3d 1461.)
Undue Hardship Only at Issue If Employer Is Unable to Offer Any Reasonable Accommodation
If a reasonable accommodation is offered, it is unnecessary to show that other alternatives would cause an undue hardship. Undue hardship is only at issue if the employer contends that he is unable to offer any reasonable accommodation. (Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345.)
FILING A RELIGIOUS DISCRIMINATION CLAIM
Before filing a statutory claim based on religious discrimination, the employee must exhaust available administrative remedies by filing a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, § 12960.)
The plaintiff must prove that he or she was treated adversely because of his or her religious creed or lack of religious creed, or that the religious creed conflicts with an employment requirement. (Code Regs. tit. 2, § 7293.1.)
Employees Have Duty to Disclose Sufficient Information Regarding Religious Beliefs
Employees must give enough information about their religious beliefs to permit employers to understand the conflict between the employee’s religious practices and job requirements. (Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433.) (employer knew employee’s wife was studying for conversion and that employee wanted time off to attend ceremony).
Example of Sufficient Information
Informing an employer that “I am not able to work on Saturday because of my religious obligation” is sufficient. (Redmond v. GAF Corp. (7th Cir. 1978) 574 F.2d 897.)
An employer shall not inquire into an applicant’s availability for work on weekends and evenings to ascertain religious beliefs or to erode the requirement of reasonable accommodation. Such inquiries may only be made “where reasonably related to the normal business requirements of the job in question.” Code Regs. tit. 2, § 7293.4.
Failing to File with DFEH Bars Claim Under the FEHA
Failure to file with the DFEH will bar a claim under the FEHA. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718.)
Filing with the EEOC is not an Acceptable Alternative to Filing with the DFEH
Filing with the EEOC does not satisfy the requirement to file a claim with the DFEH and does not enable the plaintiff to file a civil suit under the FEHA. (Id.)
Employee Must Specify Each Act of Discrimination
The employee must specify each separate and distinct act of discrimination (e.g., unlawful demotion and unlawful discharge) in the administrative complaint. (Id.)
Failing to Include a Claim in a DFEH Charge
Failure to include a claim (such as retaliation) in a DFEH charge bars that claim in civil action. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607.)
Statute of Limitations for Filing a Charge with the DFEH
A plaintiff must file a discrimination charge with the DFEH within one year from the date of the most recent act of discrimination. Gov’t Code § 12960. This period may be extended for up to 90 days if the plaintiff did not learn of the discrimination within a year of its last occurrence. (Id. § 12940.)
One-Year from the Time the Adverse Action Actually Takes Place
The one-year limitations period for filing an administrative charge of discrimination with the DFEH begins to run from the time the adverse action actually takes place, not the earlier date of notification of the adverse action. (Romano v. Rockwell Int’l (1996) 14 Cal.4th 479.)
Continuing Violation Doctrine
Employees may assert discrimination claims based on adverse actions outside of the one-year limitations period under the “continuing violation” doctrine. To invoke the doctrine, the employee must show that the adverse action is part of a long-standing practice of discrimination or harassment that continued into the limitations period. (Accardi v. City of Simi Valley (1993) 17 Cal.App.4th 321.)
REMEDIES
Compensatory Damages
The plaintiff may recover damages if he or she demonstrates that the Defendant engaged in discriminatory practice or discriminatory practices with malice or with reckless indifference. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)
Punitive Damages
Where an action is pleaded under the Fair Employment and Housing Act for discrimination, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)
Injunctive Relief
Injunctive relief is an appropriate remedy where a business engages in unlawful discrimination since an employer that so discriminates may have an unfair advantage over one that complies with the FEHA. Injunctive relief can include reinstatement of the wrongfully terminated employee. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779.)
Prejudgment Interest
Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)
Attorneys’ Fees and Costs
The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)
Lost Compensation
Back Pay
Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)
Front Pay
Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)
STATUTE OF LIMITATIONS
A plaintiff must file a discrimination charge with the California Department of Fair Employment and Housing (“DFEH”) within one year from the date of the most recent act of discrimination. (Gov. Code § 12960.) This period may be extended for up to 90 days if the plaintiff did not learn of the discrimination within a year of its last occurrence. Id. at § 12940. The plaintiff then has one year from receiving a notice of the right of civil action from the DFEH (the “right to sue letter”) to file a civil action. (Id. at § 12965(b).)
AFFIRMATIVE DEFENSES
Failure to Exhaust Administrative Remedies
The employee must exhaust available administrative remedies by filing a charge of race discrimination with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code §§ 12960, 12965, subd. (b).)
Undue Hardship
The employer is not required to accept the employee’s suggested accommodation when the employer has offered a reasonable accommodation or has shown that the employee’s proposed accommodations would cause an undue hardship. (Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345.)
Bona Fide Occupational Qualification
The use of religion as an occupational qualification must be reasonably necessary to the normal operation of employer’s business. Code Regs. tit. 2, § 7286.7(a). An employer may assert the bona fide occupational qualification (BFOQ) defense to a disparate treatment claim where the employer has a practice that on its face excludes an entire group of individuals because of their religion (Gov. Code, § 12940, subd. (a)(1).) This defense is a narrow exception to the general prohibition on discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1984) 187 Cal.App.3d 1, 19.)
Example
Dan claims that his decision to fire Paula was lawful because he was entitled to consider her religion as a job requirement. To succeed in his defense, Dan would need to prove: (1) that the job requirement was reasonably necessary for the operation of Dan’s business; (2) that Dan had a reasonable basis for believing that substantially all members of Paula’s religion group are unable to safely and efficiently perform that job; (3) that it was impossible or highly impractical to consider whether each employee was able to safely and efficiently perform the job; and (4) that it was impossible or highly impractical for Dan to rearrange job responsibilities to avoid using religion as a job requirement.