Religious Harassment, Discrimination & Accommodation
It’s not news that religion plays a central role in many people’s lives. But it might come as a surprise to some is that freedom of religion extends well into the workplace. And it should come as a welcome surprise because the lawmakers have crafted statutes that carefully balance the rights of employers and employees with respect to accommodation of religious practices.
The State of California and the United States have enacted laws the purpose of ensuring that individuals can work without undue interference of their religion or religious practices by their employers. Employees cannot turn their workplaces into de facto synagogues, mosques or churches. Neither can employers for that matter. However, employees are permitted to respectfully engage in some forms of religious practice and observance in the workplace. On the flip side, the United States Supreme Court ruled in the Hobby Lobby decision that employers also enjoy some rights to practice their religious beliefs even where such practices negatively impact some employees. It’s a delicate balancing act of competing for religious rights.
The Founding Fathers wrote the U.S. Constitution to protect religious freedoms against encroachment by the government. Their purposes have been carried forward into State and Federal statutes that prevent employers from promoting their religious beliefs in the workplace or from preventing an employee from practicing his/her religion provided such practices do not create hardship for the employer. For many individuals, their religion is as important, and maybe more important, than their work and careers, so these legal protections are important.
Sensible restrictions on an employer’s ability to restrict religious practice are codified in the law. We file lawsuits to enforce these rights and will work hard to defend a worker’s right to practice religion and work.
California has long required businesses to accommodate the religious beliefs of workers. The Fair Employment and Housing Act (FEHA) includes religious creed in the list of protected categories. California Assembly Bill 1964 amended Government Code sections 12926 and 12940 provide further clarification that the Fair Employment and Housing Act’s (FEHA) discrimination protections and reasonable accommodation requirements give an individual the right to engage in certain religious practices at work. Thus, employees may wear religious dress and engage in grooming practices consistent with their religious beliefs free from persecution. FEHA requires employers to accommodate religious beliefs and observances if reasonably possible without undue hardship. Contrast this to, say, law in France that prohibit Muslim women from wearing burkas or head scarfs.
Courts have held that these duties of an employer to accommodate extend beyond accommodating only required religious tenets. The law protects an employee’s right to engage observances, to attend services, and to pray. It’s just not clear how far these protections go and how much an employer is required to do to accommodate. Such issues will be clarified by case law.
Reasonable accommodation of a request for religious accommodation by an employer means making job modifications that enable an individual to exercise personal religious beliefs. The employer may be required, depending on the situation to make scheduling changes to permit religious observances, to allow dress and grooming practices of a religion, and to permit employees to pray at work.
Accommodating religious practices is also required under federal law. Thus, in a recent U.S. Supreme Court decision, the court ruled that a retail clothing store could not refuse to hire a Muslim woman because she wore a headscarf to her job interview. Abercrombie & Fitch argued to the Supreme Court that a young lady who was denied a job offer because of a policy banning head coverings was asking for favored treatment. However, she was entitled to wear the headscarf under federal law. Therefore, the decision not to hire her was a legal violation that entitled her to damages according to the Supreme Court. The woman’s right to practice her religion trumped the retailer’s dress code policies.
Undue hardship surely does not mean that an employer is excused from accommodating an employee making a request for religious accommodation because doing so would conflict with the religious beliefs of the employer. Thus, a boss can’t prohibit a person from engaging in religious observance because the employer has moral or ethical objections to the employee’s religion. But the exact line between an employer’s religious rights and those of employees has yet to be drawn. And there are carve-out provisions in the law that permit religious institutions to discriminate on the basis of sex and other characteristics. The Catholic Churches, therefore, may refuse to make women or gays priests.
Protections against discrimination based on religion apply to customers of a business, not just to employees. Businesses may not refuse to serve individuals on the basis of protected characteristics. A diner may not refuse to serve blacks, Muslims, or women. Thus, the Unruh Civil Rights Act in California prohibits businesses in California from discriminating against the public (customers and potential customers) on the basis of race, color, religion, sexual orientation or national origin. The Unruh Act applies to all businesses such as hotels and motels, restaurants, theaters, hospitals, barber and beauty shops, housing accommodations, and retail establishments.[4]
While we enjoy considerable protections in California, those residing out of state are not so fortunate. The conservative backlash against the protection, under the Constitution, of the right to marry regardless of sex has been intense. Justice Clarence Thomas, in his dissent, warned of ”potentially ruinous consequences for religious liberty.” Two states have passed laws allowing county clerks the right to refrain from issuing marriage licenses on the grounds that gay marriage is against their religious beliefs Greg Abbott, the governor of Texas, recently proclaimed: ”No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.”
The Law Offices of Daniel Feder in San Francisco has represented individuals seeking to practice their religion and to enforce their rights to be free from religious discrimination and harassment in the workplace. We offer services on a contingency basis and provide free consultations to anyone who believes they have been victimized or treated unfairly because of their religion or their religious practices. We have represented Muslims, Christians, Jews and members of other religious faiths in lawsuits against employers based on discrimination and harassment, failure to accommodate and other forms of mistreatment based on religion, religious beliefs and religious practices.
If you believe you have been the victim of wrongful termination based on your religion, please call us for a free attorney consultation.