Religious Creed Discrimination

California law prohibits discrimination in work situations based on religion or religious beliefs (religious creed).

California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996 Prohibits Religious Creed Discrimination

A “Religious creed” is “any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. It encompasses all aspects of religious belief, observance, and practice, including religious dress and grooming practices, as defined by” the FEHA. California Code of Regulations, title 2, section 11060.

Under the FEHA, it is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's religious creed. California Government Code section 12940(a).

Under the FEHA, "religious creed" includes the observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance. California Government Code section 12940(l).

Exceptions to the FEHA’s Protections from Religious Creed Discrimination

There is a limited exception to the FEHA’s prohibition of religious creed discrimination, as the term “’Employer’ does not include a religious association or corporation not organized for private profit.” California Government Code section 12926(d).

“’[E]mployer’ does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.” California Government Code section 12940(j)(4)(B).

Thus non-profit religious entities acting in the role of religious entities do not violate the FEHA by discriminating in employment on the basis of religion or any other characteristic that is otherwise protected under the FEHA, such as disability, sex, race, or age.

For example, “an employer that is a religious corporation may restrict eligibility for employment in any position involving the performance of religious duties to adherents of the religion for which the corporation is organized.” California Government Code section 12922. “’Religious duties’ are defined as the duties of employment connected with carrying on the religious activities of a religious corporation or association.” California Government Code section 12926.2(b).

In Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th 1041, the Court of Appeal, Fourth District, Division 3 determined that a preschool (i) located on church property, (ii) which was adjacent to a church formed for nonprofit religious purposes and which was a tax exempt entity, and (iii) the preschool having no independent legal status apart from the church, was not an employer under the FEHA. Thus, a former teacher at the preschool could not prevail on a wrongful termination claim under the FEHA, as the entity that employed her was exempt.

In contrast, religious entities operating health care facilities that are not restricted to adherents of the religion in question are subject to the FEHA. “’Employer’ includes a religious corporation or association with respect to persons employed by the religious association or corporation to perform duties, other than religious duties, at a health care facility operated by the religious association or corporation for the provision of health care that is not restricted to adherents of the religion that established the association or corporation.” California Government Code section 12926.2.

What qualifies as a "Religious Creed"?

A religion qualifies as a religious creed if it:

• Addresses fundamental and ultimate questions having to do with deep and imponderable matters;
• Is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and
• A religion can be recognized by the presence of certain formal and external signs. Friedman v. Southern Calif. Permanente Med. Group (2002) 102 Cal.App.4th 39, 69-70.

Protection extends to people adhering to non-traditional religions. For instance, atheism is also protected. See Young v. Southwestern Sav. & Loan Assoc. (5th Cir. 1975) 509 F.2d 140, 143-144.

Title VII of the Civil Rights Act of 1964 (Title VII), 42 United States Code section 2000e, et seq. Prohibits Religious Creed Discrimination

Religious creed discrimination is also prohibited by the FEHA’s federal counterpart, Title VII. The scope of what constitutes a religious creed is generally the same under Title VII as it is under the FEHA.

Protection of an employee's religious convictions extends well beyond traditional religions. It includes "all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent." United States v. Seeger (1965) 380 U.S. 163, 177.

An individual's religious belief is protected if the religious belief is "[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition." Id.

The Equal Employment Opportunity Commission defines "religious practices" to include moral or ethical beliefs about what is right and wrong that are sincerely held with the strength of traditional religious views, and it includes both religious observances and practices. Code of Federal Regulations, title 29, section 1605.1.

Proving Religious Creed Discrimination

To successfully bring a claim for religious creed discrimination, the plaintiff needs to prove that:

• the employer was a covered entity under the law,
• the plaintiff was an employee of the employer or applied for a job with the employer,
• "the employee has a bona fide religious belief, the practice of which conflicted with an employment duty," (though, the belief does not necessarily have to be long held)
• "the employee informs the employer of the belief and conflict," and
• "the employer threatens or subjects the employee to discriminatory treatment because of the employee's inability to fulfill the job requirements (due to the employee’s bona fide religious belief)." Balint v. Carson City (9th Cir. 1999) 180 F.3d 1047, 1051 n.3.

The employer must then show that it was unable to reasonably accommodate the "employee's or prospective employee's religious observance or practice." Balint v. Carson City (9th Cir. 1999) 180 F.3d 1047, 1050 n.2; California Government Code section 12940(l). It is the employer's statutory duty to attempt to accommodate the employee's religion. In California, this duty covers the religious belief as well as any associated religious observance. California Government Code section 12940(l).

Bottom line: an employer may not use your religious affiliation as a factor in making any employment decisions that affect you.

Reasonable accommodations for religious practices and observances could include schedule changes, shift exchanges, or lateral transfers or changes of job assignments. Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233, 241. This duty is only excused if the accommodation proposed would be an undue burden. Example: An employee's religious beliefs would require the employer to breach federal or state law (e.g. violating California Occupational Safety and Health Administration standards); therefore, the employer's duty to accommodate the employee is excused. Sutton v. Providence St. Joseph Med. Ctr. (9^th Cir. 1999) 192 F.3d 826, 830.

What To Do If You Are Discriminated Against Because Of Your Religious Beliefs

• Inform the person who is discriminating against you that you wish for the conduct to stop. If the conduct does not stop or if you are not comfortable confronting the person in question, then inform your supervisor, human resources, management, or someone else in the supervisory chain.
• If the person discriminating against you is a supervisor or manager, or if you have been terminated by your employer based on discriminatory reasons, you may want to file a complaint with the California Department of Fair Employment Housing. You may also want to consult with an experienced employment law attorney to find out what your options are.

Contact Us

If you have been terminated from your workplace or your employer has otherwise discriminated against you because of your religious beliefs, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.

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