Expect New Job Bias Claims Over Religious Dress and Grooming Practices

                Last month, Governor Brown signed AB 1964, an amendment to the California job bias statute known as the Fair Employment and Housing Act ("FEHA"). The new law significantly expands employee rights by allowing employees to sue over employer dress code and grooming restrictions that may interfere with religious expression. The new law also limits employers' options for accommodating such religious conflicts.

            Effective January 1, 2013, FEHA's protections against religious discrimination will expressly include protection of an employee's "religious dress practice" or "religious grooming practice." The new amendment provides that these terms are to be construed broadly.

             "Religious dress practices[s]" 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[s]" include "all forms of head, facial or body hair that are part of observing an individual's religious creed."

            While FEHA already requires employers to reasonably accommodate employee religious practices to the extent they can do so without suffering a so-called "undue hardship," the amendments specify that any accommodation of an employee's religious dress or grooming practices which requires the employee to be segregated from the public or from other employees will not be deemed to be reasonable accommodation.

            Although the amendments are intended to clarify, rather than expand, the existing broad definition of a protected "religious creed" -- which includes "all aspects of religious belief, observance and practice" -- increased public awareness likely will translate into increased litigation against employers with strict uniform, dress or grooming policies.

            For instance, a general policy prohibiting headwear or accessories that are not part of an employee's assigned uniform will run afoul of the new law unless exceptions are made for religious articles of clothing such a hajib worn by a Muslim woman or a turban worn by Sikh man. The same would be true of a policy prohibiting male employees from having a beard or  requiring male employees to keep beards "neatly trimmed," if applied to an employee whose religious beliefs prohibit the cutting of facial hair.

What Employers Should Do

• Review work rules, employee manuals, job descriptions or operating manuals which include dress, grooming or uniform standards. Consider adding an express statement that exceptions may be made, upon request, to accommodate religious practices.
• Educate managers as to the company's legal obligation to reasonably accommodate employees who wear non-standard clothing or are unable to comply with grooming standards because of their religious beliefs.
• Ensure that employees who cannot comply with dress or grooming codes because of their religious beliefs are not reassigned for purposes of keeping them out of the view of the public or other employees. 
• Educate managers and employees alike on the anti-harassment provisions in the FEHA. Jokes, comments and the like may form the basis of a hostile environment claim and may be used as evidence of a discriminatory motive or illegal retaliation.

            For more information, call us today at (818) 508-3700, or visit us on the web at www.brgslaw.com

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP