Religious Creed Termination

It is unlawful for an employer with five or more employees 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). The federal Title VII of the Civil Rights Act of 1964 (Title VII), 42 United States Code section 2000e, et seq., passed in response to the Civil Rights Movement of the 1960s and calls for enforcement of equal treatment in the workplace, generally provides similar protections. These anti-discrimination statutes also apply to employees who do not possess religious beliefs or engage in religious practices.

Protection of an employee's religious convictions extends well beyond traditional religions such as Christianity, Judaism, Baháʼí Faith, Islam, Hinduism, Sikhism, Zoroastrianism, and Buddhism. 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. More specifically, 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. Thus, protected religious beliefs include new or uncommon beliefs that are not part of a formal church or include views that most people might find illogical or unreasonable. See Smith v. Fair Employment & Housing Commission (1996) 12 Cal.4th 1143, 1167. Protected religious beliefs can be long standing or recently adopted. In contrast, social, political, or economic philosophies in of themselves are not religious creeds. Brown v. Smith (2018) 24 Cal.App.5th 1135, 1144. Determining whether a practice is religious must be performed on a case-by-case basis. The focus is not the activities involved but, rather, the employee’s motivation in engaging in those activities. One’s adherence to certain restrictions as to diet or working on a certain day of the week might be for religious reasons for one person and for secular reasons such as mental and physical health for another person. Of course, for a plaintiff to successfully pursue a claim for religious creed termination, the plaintiff must show that the employer knew or should have known about his religious beliefs. See Elmenayer v. ABF Freight System, Inc. (E.D.N.Y. Sept. 20, 2001) No. 98-CV-4061, in which an employer was found not liable for employment discrimination for disciplining an employee for tardiness where the employee did not, until after his termination, explain that his tardiness was because he was Muslim and had attended a prayer service.) In most cases, the question of whether the practice or belief is religious will not be an issue.

Under the Equal Employment Opportunity Commission, the term "religious practices" includes moral or ethical beliefs about what is right and wrong that are sincerely held with the strength of traditional religious views. Code of Federal Regulations, title 29, section 1605.1. Under FEHA, "religious creed" includes the observance of a Sabbath or other religious holy days, and reasonable time necessary for travel prior and subsequent to a religious observance. California Government Code section 12940(l).

What qualifies as a "religious creed"? A religion qualifies 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 California Permanente Medical Group (2002) 102 Cal.App.4th 39, 69-70.

Again, however, protection extends to people adhering to non-traditional religions. For instance, atheism is protected. See Young v. Southwestern Savings & Loan Association (5th Cir. 1975) 509 F.2d 140, 143-144. Protections also extend to discrimination based on a belief that someone of the employee’s religion should not associate with someone who is not of that religion, such as an employee’s religious inter-marriage.

To successfully bring a claim for wrongful termination based on religious creed, the plaintiff needs to prove that:

• "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), or a lack of religious beliefs, observances, or practices,
• "the employee informs the employer of the belief and conflict," and
• "the employer threatens [to terminate or proceeds to terminate] the employee because of the employee's inability to fulfill the job requirements" because the employee requires accommodation for a religious belief, observance, or practice that the employer knew or suspected may be needed and would not have imposed an undue hardship on the employer’s ability to conduct business. See Balint v. Carson City (9th Cir. 1999) 180 F.3d 1047, 1051.

The employer must then show that he/she 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; 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 religious observance. California Government Code section 12940(l).

Reasonable accommodations for the religious beliefs and practices of employees can include:

• schedule changes for breaks or shifts,
• shift exchanges,
• lateral transfers (see Cook v. Lindsay Olive Growers (9th Cir. 1990) 911 F.2d 233, 241),
• establishing a policy permitting floating holidays,
• allowing an employee to contain his long hair in a clip, hair net, or ponytail,
• allowing an employee to wear a religious article, such as a medallion or jewelry, over his clothing—or, in cases where wearing of a religious article over clothing would pose a legitimate workplace safety concern (e.g. likely to became tangled in machinery), allowing the employee to wear the religious article under his clothing,
• supplying a mask to wear over facial hair, in cases where abundant facial hair raises hygienic concerns (e.g. food handlers),
• allowing an employee to wear religious clothing such as a Muslim hijab, a Sikh turban, or a Sikh kirpan.
• allowing an employee to wear Rastafarian dreadlocks, or Jewish sidelocks, or other hairstyles related to protected characteristics, including not only religious creeds but also race and national origin,
• Allowing an employee to display religious messages or keep a Bible or Koran in her or his personal workspace,
• Excusing an employee from attending training sessions with religious elements, such as a benediction. 

The duty to provide reasonable accommodation is excused only if the accommodation proposed would be an undue burden. Example: An employee's religious beliefs would require the employer to breach federal law. Sutton v. Providence St. Joseph Medical Center (9th Cir. 1999) 192 F.3d 826, 830.

If you have been terminated from your job because of your religious beliefs or someone’s perception of your religious beliefs, or if you believe your employer or ex-employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us through our online form.