Question: Several of my employees have asked to take time off on Good Friday. In order to be fair, can I refuse to grant all of their requests?
Answer: The Fair Employment and Housing Act (“FEHA”) requires employers with five or more employees to accommodate their employees’ known “religious creed” unless the employer can demonstrate that to do so would impose an undue hardship. FEHA defines “religious creed” broadly, including any traditionally recognized religion as well as any 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.
Under this extensive definition, all religions and sincerely held beliefs, whether recognized or accepted by the employer, must be given equal weight, respect, and consideration for accommodations. For instance, an employee’s request for accommodation to observe the holy days of the Festival of Ridván must be given equal consideration as another employee’s request for accommodation to observe Good Friday or Easter.
FEHA also provides broad protections for religious dress and grooming practices related to an employee’s observation of his or her religious creed. Religious dress and grooming include the wearing of religious clothing, head or face coverings, jewelry, artifacts, and head, facial, and body hair. This may include wearing a headscarf or other traditional clothing such as a tzitzit, having long hair, or exposing a tattoo. Keep in mind that neither the coworkers’ disgruntlement or displeasure about the religious accommodation, nor a customer’s preference, is considered an undue hardship that would allow an employer to prohibit or restrict the employee’s religious dress or grooming.
A recent California Department of Fair Employment and Housing (“DFEH”) case highlights the importance of accommodating reasonable requests for observance of a religious practice or holy day. A Seventh Day Adventist, who observes the Sabbath on Saturdays, requested that her employer accommodate her request not to work Saturdays. The employer denied the request, and thereafter terminated the employee for not reporting to work on her scheduled Saturday shift. The DFEH sued the employer for failing to grant the employee’s request for time off for the Sabbath, and the matter recently settled for $40,000.00. The DFEH stated following the settlement, “DFEH is committed to ensuring that reasonable religious accommodations are provided to workers who require them. Unless the employer demonstrates undue hardship, the law specifically requires accommodation of observance of a Sabbath or other religious holy day.” The DFEH’s position in enforcing the law confirms that unless an employer can clearly and irrefutably establish an undue hardship, the employer must grant requests for reasonable accommodations for religious observances and practices.
When faced with multiple requests for accommodation for the same religious observance, employers should accommodate such requests in a consistent, nondiscriminatory, and neutral fashion. Employers could suggest alternatives, such as splitting the day off. In determining the accommodation, it must ensure that it is not treating requests related to one religion more favorably than others.
Employers are reminded to seriously consider employee requests for religious accommodations – whether for the practice or observance of their religion, or related to religious dress and grooming. In refusing an accommodation, employers should be ready to prove the undue hardship that led to that decision, keeping in mind that even extensive documentation may not excuse the failure to accommodate.