©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 179 6.10.3 Express obligation that employer explore and document reasonable accommodations While federal law generally requires employers to reasonably accommodate an employee’s religious beliefs and observances, the FEHA contains express language that makes that duty more onerous. A California covered employer cannot enforce any requirement that conflicts with a “person’s religious belief or observance” unless the employer “demonstrates that it has explored any available reasonable alternative means of accommodating that conflict between the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship as defined in subdivision (u) of section 12926, on the conduct of the business of the employer or other entity covered by this part.”270 6.10.4 Attempt to adopt higher standard for employers to show undue hardship Federal law permits employers to refuse to provide a religious accommodation for an employee if the accommodation would cause an “undue hardship,” which the U.S. Supreme Court has defined very broadly to mean anything more than a de minimis cost. Lawyers once debated whether California courts should follow analogous federal law or should instead follow the FEHA factors for undue hardship applicable to disability accommodation cases and the FEHC interpretative regulations, which, without recognizing any de minimis standard, defined “undue hardship” as “significant difficulty or expense” in terms of such factors as the size of the establishment, the size of budgets, the overall size of the employer, the nature and cost of the accommodation, and the availability of reasonable alternatives.271 Effective January 1, 2013, the Legislature attempted to moot that debate by amending the FEHA in an attempt to clarify that the “significant difficulty or expense” standard set forth in Government Code section 12926(u) is the standard to apply in religious accommodation cases in California.272 But the Legislature also then added an express exception or limitation to the religious accommodation requirement: “An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of section 51 of the Civil Code [all business establishments] and section 11135 of this code [state government employment].”273 Although it is not entirely clear from the legislative history, it appears that the exception was deemed necessary to avoid conflict with the Establishment Clause of the U.S. Constitution. Despite the Legislature’s attempt to establish an undue hardship standard for religious accommodation cases that is higher and more difficult to meet than the federal deminimis standard, at least two federal courts, considering both Title VII and FEHA claims, have indicated that the standards for deciding FEHA religious accommodation and discrimination claims are the same standards applicable to analogous Title VII claims (including the de minimis standard for undue hardship), and that both the Title VII and FEHA claims rise and fall together.274 A third case, in what arguably may be characterized as dicta, has indicated the same.275 6.11 Special Rules for Retaliation Under both federal and California law, employers cannot retaliate against employees for engaging in protected activity, even where the conduct the employees oppose turns out not to be unlawful.276 But California diverges from federal law in several key respects, to broaden liability for retaliation. 6.11.1 Broad definition of protected activity Under federal law, retaliation plaintiffs must show they engaged in protected activity, which means that they participated in a discrimination charge or lawsuit or at least overtly opposed what they reasonably thought was
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