On September 8, 2012, Governor Jerry Brown signed into law AB 1964, the Religious Freedom Act of 2012, which amends Section 12926 of the California Government Code. This new law enhances the protections for employees against religious discrimination by, among other things, strengthening the definition of what constitutes an undue hardship.
The existing law protects individuals from employment discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.
The new law, which will take effect on January 1, 2013, expands the definition of “religious creed” to include religious dress and grooming practices as part of an individual’s religious observance or belief. “Religious dress practice” will be construed broadly to include “wearing or carrying of religious clothing, head or face covering, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.” Religious grooming practice includes all forms of head, facial, and body hair that is likewise part of observing an individual’s religious creed.
Employers have been required to reasonably accommodate the religious belief or observance of an individual unless the accommodation would be an undue hardship on the conduct of business of the employer. AB 1964 provides that an undue hardship requires a “significant difficulty or expense” as opposed to the “de minimis” standard under federal law. Under AB 1964, for an employer to show it is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of its business, it must demonstrate that it has explored any available reasonable means of accommodating the religious belief or observance such as excusing the person from the duties that conflict with his or her religious belief or permitting those duties to be performed at another time or by another person. Additionally, the law makes it clear that an accommodation that would require the individual to be segregated from the public or other employees would not be considered reasonable.
While employers have always needed to take requests for religious accommodation seriously, they will want to ensure that they carefully consider each request in light of the new heightened standards.