Kick Us While We’re Down

by Ervin Cohen & Jessup LLP

EmpBlog-9.12.2012-religiousdressWhen it comes to employment law, California is often cast as something similar to a socialist state:  the People’s Republic of California.  Employers, media commentators and members of a certain prominent political party often complain that California’s employment laws, which often set higher standards than federal law or the laws of other states, make it difficult for employers to conduct business in California and are having the effect of driving some businesses out of the state (or out of business altogether).

Want my unbiased and wonderfully objective view on this issue?  It is absolutely true.  California creates more employment laws than Nike makes shoes, particularly in comparison to the courts and legislatures of neighboring states.  And while you can debate the intentions of California’s Legislature, it cannot be questioned that the overall impact of these laws is to ensure that doing business in California is more costly than, for example, doing business in Nevada.  Of course, there are probably greater rewards for employers who do business in California given relative populations and disposable income, but the high cost of doing business in California is undoubtedly a source of annoyance to California employers.

Should these costs be kept in mind by lawmakers when drafting new legislation?  Absolutely.  Should these criticisms be levied upon each piece of new legislation that is signed into law?  Absolutely not.  Case in point:  Assembly Bill 1964.

Signed into law by Governor Brown mere days ago, Assembly Bill 1964, the Workplace Religious Freedom Act of 2012, has received a lot of attention and has been labeled by some as another example of the California State Legislature making life difficult for California employers.  AB 1964 serves to clarify existing definitions set forth within the Fair Employment and Housing Act (FEHA) with respect to religious discrimination.  In brief, it expands the definition of religious belief or observance to explicitly include religious clothing and grooming, acts of observance which were already implicitly protected by FEHA.

More importantly, AB 1964 clarifies which definition of “undue hardship” will apply when considering a request for a religious accommodation.  FEHA requires employers to reasonably accommodate the religious needs of employees unless doing so would constitute an “undue hardship” on the employer.  AB 1964 specifies that a religious accommodation causes undue hardship whenever the accommodation results in “significant difficulty or expense” for the employer, a definition which was already set forth in FEHA.  This clarification was needed because of confusion in the courts between the “significant difficulty or expense” definition and the definition of undue hardship which holds that a “de minimus” or minimal cost is sufficient to constitute undue hardship, a definition applied under federal law.

Indeed, AB 1964 was in part prompted by court decision which applied the de minimus definition under federal law.  The Illinois decision held that an employer could reasonably accommodate a Sikh employee by banning him from having face to face contact with the public because the Sikh’s turban, an article of religious observance, violated the company dress code.

Hiding employees from the public because of their religious practices is not consistent with California’s Constitution and the Illinois court decision, although in compliance with federal law, is not consistent with the principles on which this country was founded.  In terms of cost or inconvenience, AB 1964 should have no impact on any California employer who was already operating under a fair interpretation of FEHA or, indeed, with a reasonable tolerance for the beliefs of others.  Too many laws in California?  Yes, but this isn’t one of them.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked.  So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again.  This is commentary people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing.  No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits).  But feel free to contact us with your questions and comments—who knows, we might even answer you.  And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry).  Big news: Copyright 2012.  All rights reserved; yep, all of them.

If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq. (who else would you contact?), commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department, at (310) 281-6348 or

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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