On September 8, 2012, California Governor Jerry Brown signed
into law Assembly Bill (AB) 1964 to amend Section 12926 of the
California Government Code which embodies the California Fair
Employment and Housing Act. 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 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 are likewise part of observing an
individual's religious creed.
Employers are 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. Under AB 1964, an accommodation that would require the
individual to be segregated from the public or other employees
would not be considered reasonable.
For an employer to show it is unable to reasonably accommodate the
religious belief or observance of an employee 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 individual
from the duties that conflict with his or her religious belief or
permitting those duties to be performed at another time or by
another employee), but is unable to accommodate the religious
belief or observance without undue hardship.
AB 1964 was coupled with AB 2386, which expands the protection
from discrimination based on sex to include breastfeeding or
medical conditions related to breastfeeding. AB 2386 was passed by
the state legislature and is awaiting signature by the
governor.
According to
Robert Jones, of counsel in Ogletree Deakins' San Francisco
office: "Employers should anticipate a significant increase in
claims, especially given the broad language of the statute and the
lack of any significant precedential holdings that employers can
rely upon."
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