©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 177 provide equal access to facilities such as bathrooms, regardless of the employee’s gender identity, and to provide gender-neutral signage for single-occupancy facilities.265 The regulations further prohibit employers from inquiring about sex, gender identity, or gender expression as a condition of employment,266 and forbid imposing dress standards that conflict with an employee’s gender identity or gender expression, unless the employer can establish a business necessity.267 The regulations also require employers to abide by the employee’s preferred name, pronouns (including gender-neutral pronouns), and gender identity, unless the employer otherwise must, by law, utilize the employee’s legal name and the sex assigned at birth.268 6.10 Special Rules for Religious Accommodation While FEHA’s definition of “religion” may in some way be narrower than its federal counterpart,269 the scope of the California duty to accommodate religious practices is broader in some aspects than the corresponding federal duty. 6.10.1 Express coverage of specified religious practices Federal law protects religious workplace expression only in general terms. California differs, by expressly defining “religion” to encompass “all aspects of religious belief, observance, and practice, including religious dress and grooming practices.” “Religious belief or observance” includes “observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice.”270 “Religious dress practice” includes “the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance” of an individual’s religious creed. “Religious grooming practice” includes “all forms of head, facial, and body hair that are part of the observance” of the individual’s religious creed.271 6.10.2 Disallowance of segregation as a religious accommodation Judicial interpretations of federal law have permitted employers to accommodate religious objections to the employee’s personal appearance standards by having the religiously objecting employee—while retaining pay and benefits—work in a secluded area of the workplace. California categorically rejects that approach: “An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.”272 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.”273 6.10.4 Higher standard for employers to show undue hardship Federal law (Title VII) permits employers to refuse to provide a religious accommodation for an employee if the accommodation would cause an “undue hardship.” On June 29, 2023, the U.S. Supreme Court clarified that “undue hardship” under Title VII means that an employer must show that the “burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”274
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