178 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com The Court in Groff v. DeJoy made it clear that it was not adopting the legal standard for undue hardship applied in Americans with Disabilities Act (ADA) cases, but something in between that standard and the prior “de minimis” standard, which the Court stated had been incorrectly adopted by the lower courts in religious accommodation cases.275 In 2013, the FEHA was amended to clarify that, in religious accommodation cases, California law applies the same standard for undue hardship that it applies in disability cases.276 The FEHA standard for “undue hardship” is expressly defined 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.277 The standards for proving “undue hardship” under California law and federal law are now more closely aligned (“substantial increased costs” vs. “significant difficulty or expense”) than they were when some courts applied a de minimis standard to Title VII religious accommodation claims. It remains to be seen, however, how courts will parse the California and federal standards when both FEHA and Title VII claims are presented in future cases. In addition, unlike Title VII, the FEHA has an express statutory 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].”278 In this regard, the Court in Groff stated that the effect on other employees is one factor to consider when evaluating the overall effect of the accommodation on the operations of the particular business.279 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.280 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 unlawful discrimination.281 In California it’s different. Here the employee’s opposition need not be overt. Plaintiffs who disagree with employer directives they believe to be discriminatory need not express that belief; all they must prove is that the employer knew the plaintiff thought the directive was discriminatory. Thus, the California Supreme Court permitted a female manager to proceed on a retaliation claim in which her “opposition” activity was simply resisting a male manager’s order to fire a female cosmetics sales clerk for not being pretty enough.282 By the Supreme Court’s view, the plaintiff had engaged in protected activity even though she did not report or protest the offensive order to fire the sales clerk, but rather simply said she needed more “justification.” It was enough that she reasonably believed that the order to fire the clerk was discriminatory and that the employer, “in light of all the circumstances,” was aware of that belief. California has also expanded the scope of protected employee activity to include an employee’s request for a reasonable accommodation with respect to either religious accommodation or disability accommodation.283 California courts do seem to recognize that a plaintiff’s oppositional activity, to be protected, must have been in good faith; the law does not protect knowingly false charges.284 Nor does the FEHA protect either lying or withholding information during an employer’s internal investigation of a discrimination claim.285
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