Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 175 Regulations provide additional protections for gender identity and transgender employees in the workplace. The regulations add a definition of “transitioning, ” 239 a nd prohibited discrimination against individuals who are transitioning, have transitioned, or are perceived to be transitioning . 240 The regulations also require employers to 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 . 241 T he regulations further prohibit employers from inquiring about sex, gender identity, or gender expression as a condition of employment , 242 a nd forbid imposing dress standards that conflict with an employee’s gender identity or gender expression, unless the employer can establish a business necessity . 243 The regulations also require employers to abide by the employee’s preferred name and gender identity, unless the employer otherwise must, by law, utilize the employee’s legal name and the sex assigned at birth . 244 6.10 Special Rules for Religious Accommodation While FEHA’s definition of “religion” may in some respects be narrower than its federal counterpart , 245 t he 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. ” 246 “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 cree d. 247 6.10.2 Disallowance of segregation as a religious accommodation Judicial interpretations of federal law have permitted employees to accommodate religious objections to the employer’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. ” 248 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. ” 249