Employment Law

Recent amendments to California’s Fair Employment and Housing Act (“FEHA”) provide clarity regarding an employer’s duty to provide religious accommodations to its employees. FEHA protects employees from discrimination and harassment based on religion and requires employers to reasonably accommodate employees’ requests for religious accommodation unless such accommodation would cause “undue hardship” to the employer.

Under the 2013 amendments, to prove undue hardship, an employer must demonstrate “significant difficulty or expense” associated with the religious accommodation. This definition requires an employer to make every practical effort to provide religious accommodations to its employees, including considering alternative accommodations rather than simply denying an employee’s request for accommodation.

FEHA also protects employees’ “religious observances.” The new amendments clarify that religious clothing, dress, and grooming practices fall under the category of religious observances. Therefore, if a dress or grooming practice is an essential component to an employee’s religious practice, then an employer must accommodate the practice unless doing so would cause an undue hardship. Practically speaking, this means that employees may be entitled to religious accommodations from their employers’ official dress code policies.

Finally, the new amendments prohibit California employers from segregating employees from customers to accommodate employees’ religious beliefs. Thus, employers will now have to suggest alternative reasonable accommodations that do not include relocating employees to a back office or away from public view.

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On March 24th, 2011 the Equal Employment Opportunity Commission(EEOC) established new regulations to the Americans with Disabilities Act (ADA) that would enable employers to determine who qualifies as disabled. The new ADA Amendments Act (ADAAA) overturned a few Supreme Court decisions that Congress believed determined disability “too narrowly.” The amendment now includes HIV infection, diabetes, epilepsy and bipolar disorder which congress felt “should easily be concluded to be disabilities.”

Congress says both employers and employees will benefit from these new regulations. From an attorney’s standpoint Condon McGlothlen from the firm Seyfarth Shaw said:” More disability lawsuits can be expected to be filed and importantly, those lawsuits will be become much harder to defend against at an early pleading stage.” A rise in disability lawsuits in 2011 may not be directly attributed to these new regulations; Bloomberg reports that 25,000 disability discrimination claims were filed in 2010 up from 21,400 in 2009. Gary Phelan an attorney with Cohen and Wolf whose clients are mostly employees, said on the Law Blog that “in those cases where there are close calls about where an individual meets the definition of disability, more employees will be covered under the ADA.” If these new regulations would be detrimental to businesses why would the chamber off commerce sign off on the ADAAA? Michael Eastman, director of labor law for the chamber of commerce told Bloomberg that the new disability terms should not harm companies.

Even with Congress and the chamber of commerce’s assurances, companies should be gearing up for new disability claims from employees now these regulations are in the act.

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