How to Manage Requests for Religious Accommodations in California

The  Fair Employment and Housing Act (FEHA) is the California law that addresses the rights of individuals with regard to religion and the obligations of employers. The FEHA provides protection from discrimination in employment because of a person's religious beliefs or creed.

California's fair employment law regarding religion provides protections independent from those in the federal Title VII of the Civil Rights Act of 1964. The FEHA pertains to private businesses as well as to the government (but does not include an employer that is a not-for-profit religious organization.)

To reasonably accommodate an applicant or employee in California, employers must know what is required by California state law and what constitutes a religious belief or creed under state law.

This how-to guide outlines the various steps involved when handling a request for accommodation from both applicants and current employees. However, the guide is not meant to be, nor should it be construed as, legal advice, and employers should seek the guidance of California employment law attorneys when making religious accommodation-related decisions in their respective workplaces.

Step 1: Determine If the Employer Is Covered Under the FEHA

The FEHA defines an employer as a private- or public-sector employer or agent of an employer that either directly or indirectly employs five or more persons. An employer does not include a religious association or corporation not organized for private profit (California Government Code §12926(d)).

Step 2: Ensure a Policy and Procedure Exists for Handling Accommodation Requests

The organization's policy and procedures for handling requests for accommodations should be reviewed. If the organization does not currently have a written policy, it should conduct a careful review as to what the company's past practices have been with regard to handling employee requests for religious accommodations. See Religious Accommodation Policy.

Step 3: Determine if the Employee Is a Qualified Individual with a Qualifying Religious Belief Under the FEHA

The next step is to review the employee's request. California's law and definitions are broader in many aspects than federal equal employment opportunity (EEO) laws. According to California's FEHA, a religion is defined as all traditionally recognized religions and beliefs, observations or practices sincerely held that occupy in the employee's life a place of importance parallel to that of traditionally recognized religions. Additionally, case law has clarified that this duty extends beyond accommodating only required religious tenets and may include observances an employee simply prefers to follow or attend, and that an employer should generally avoid inquiry into whether a religious observance is required.

Religious creed, religion, religious observance, religious belief and creed have been defined to include all aspects of religious belief, observance and practice, including religious dress and grooming practices. "Religious dress practice" includes wearing or carrying religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of a religious observance. "Religious grooming practice" includes all forms of head, facial and body hair that are part of a religious creed (C.G.C. §12926(q)).

Step 4: Determine a Reasonable Accommodation

Once an employer has engaged in the steps listed above, it should begin the process of determining the reasonable accommodation options. Reasonable accommodations can vary in scope and will vary from case to case.

The FEHA requires that employers accommodate religious beliefs and observances if reasonably possible to do so and if the accommodation does not cause an undue hardship. For the most part, a reasonable accommodation is one that eliminates the employee's conflict between his or her religious practices and work requirements and that does not cause an undue hardship for the employer. An organization should obtain input from the supervisor who has knowledge about the duties of the position and the worksite to help determine the feasibility and what may be a reasonable accommodation.

The relevant question when an employee makes a request for an accommodation to permit a religious observance is whether the employer can reasonably grant the request without undue hardship. Thus, reasonable accommodation, in the religious discrimination context, means job modifications that enable an individual to exercise personal religious beliefs, including (without limitation) scheduling changes to permit religious observances, permitting certain dress and grooming practices, and permitting employees to pray at work in some circumstances (e.g., during break time in a private area or, as in some faiths, at regular intervals throughout the day).

Employers can permissibly refuse to accommodate a request for reasonable accommodation from an applicant or employee if doing so would present an undue hardship to the operation of the business. (The undue hardship definition that applies to other types of discrimination also applies to religious discrimination.) However, employers should exert caution when using the undue burden or hardship defense as a rationale to not accommodate a FEHA disability accommodation request.

If an employer denies an accommodation because it would be an undue hardship, it must show that the accommodation requires significant difficulty or expense, when considered in light of the following factors:

• The nature and cost of the accommodation needed.
• The financial resources of the facilities involved, the number of employees at the facility and the financial impact of these accommodations on the operation of the facility.
• The overall financial resources of the employer, the size of the business with respect to the number of employees, and the number, type and locations of its facilities.
• The type of operations, including the composition, structure and functions of the workforce of the employer.
• The geographic separateness, administrative or fiscal relationship of the facility or facilities (C.G.C. §12926(u)).

Step 5: Notify the Employee or Applicant

Once an employer has selected the most effective accommodation options to be implemented, it should then discuss those accommodation options with the employee or applicant who requested the accommodation. Although the employer is free to choose among effective accommodation options, consulting with and considering the preference of the employee or applicant is a recommended practice as it further demonstrates good faith on the organization's part.

The employer should notify the employee or applicant in writing that his or her requested accommodation has been approved or denied. Details of the accommodation should be included in the notification.

The employer should document all communications and any and all accommodations offered as proof that good faith efforts were made. Furthermore, the organization should maintain all copies of accommodation requests and supporting information and documentation, including denials, in a confidential file separate from the personnel record. These records should be maintained for at least two years after creation, or in the case of an applicant or terminated employee at least two years from the employment decision. In the event of any FEHA or EEOC complaint, any and all records must be maintained until final disposition (C.G.C. §12946).

Step 6: Implement Accommodations

As soon as an accommodation has been agreed on, it should then be implemented as quickly as possible.

Step 7: Review and Modify

The accommodation process is not set in stone, and it may need to be later reviewed, especially if the needs of the employee or business change.

The employer should collect and analyze data in relation to accommodations to ensure their effectiveness in continuing to meet both the needs of employees as well as of the organization.