It wasn’t a surprise. California is probably the most religiously diverse, pro-employee state in the U.S. The issue of wearing religious garb at work had been festering for some time. Perhaps the most publicized example was of a Muslim female employee claiming that Disneyland had illegally refused to accommodate her request to wear her religious head scarf, or hijab, while working as a restaurant hostess. So, when California’s Governor, Jerry Brown, recently signed AB 1964 into law (effective January 1, 2013), adding religious clothing and grooming as protected religious practices, employers and employment lawyers were not completely caught off guard.
The new law, sponsored by the Sikh Coalition, expands the Fair Employment and Housing Act’s protected category of religion to include “religious dress and grooming practices.” And, it further defines religious dress practices to “be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.” Religious grooming practices are defined to “be construed broadly to include all forms of head, facial, and body hair that are part of” the individual’s religious creed. The quick and easy accommodation of hiding or isolating the observant employee will be officially unlawful under the new law.
As always, the challenge for employers will be anticipating how the new law will be applied by the California Department of Fair Employment and Housing and by the courts. Litigation is sure to follow as some of the new terms beg for interpretation. What is a “head or face covering”? Also, “artifacts and any other item” sure lack specificity. And, what about the threshold question: Is there a real “religion” involved?
The defenses to requests for religious dress/grooming accommodation are few. A longstanding defense of undue hardship to the employer remains. Also, the new law codifies a defense that accommodation requests may be denied if the accommodation will intrude upon other, specific civil rights laws.
The bottom line: In this melting pot of peoples and cultures we call California, employers must become aware of the new and existing laws that protect religious practices and treat requests for religious accommodation with the same seriousness as requests for disability accommodations.