On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
Effective January 1, 2013, California employers were prohibited from regulating attire and grooming practices that are related to employees’ religious faith or related observances.
In 2015, the 10th Circuit Court of appeals held, in EEOC v. Abercrombie and Fitch, that even policies which are non-discriminatory on their face, that have an adverse impact on a religious practice, require the employer to offer reasonable accommodations. An appeal before the U.S. Supreme Court is pending.
Potential problems arise due to confusion as to what constitutes a “religious practice” in California.
- Employees do not need to belong to a well-known or recognized religion, to be legally protected.
- The 2013 legislation applies to religious beliefs that are uncommon, which are not part of a church or sect or that seem illogical or unreasonable to others.
- Protected beliefs must, in addition to being religious in nature merely because they are strongly held, must also concern ultimate ideas about life, death and questions of right and wrong.
- Whether a belief or practice is “religious” depends on the employee’s motivation. For example, while one person may observe dietary restrictions for religious reasons, others may adopt similar practices for reasons that are rooted in health-related or “secular” reasons.
- Moreover, employees who lack any religious belief or observance are also protected.
The Problem: under current law, some “cults” might qualify for protection under California law. For example, would the Oregon commune followers of the Bhagwan Shree Rajneesh, known as “the sex guru” and famous for his collection of Rolls Royce cars, be entitled to these protections?
The courts resolve doubts about coverage in favor of protecting employees. Legal protection includes:
- Wearing or carrying of religious clothing, face coverings, jewelry, artifacts and any other item that are part of a religious observance.
- What constitutes a “religious grooming practice” is also interpreted broadly by the courts, to include all forms of head, facial and body hair that form part of observance of an employee’s religious creed.
Due to the 2013 law, Employers are now required to explore available reasonable alternative means of accommodating employees’ religious beliefs or observances, including excusing employees from duties that conflict with religious practices, or arranging for them to be performed by others.
Given employer uncertainty about what religious beliefs or observances trigger the duty to accommodate, it is not surprising that new discrimination and retaliation cases are increasing in frequency.
Bottom Line: The above information will assist with identifying legal issues as they arise. Once identified in your workplace, consult a labor law expert for guidance to avoid making mistakes that will result in lawsuits.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/