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

176 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 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 . 250 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 Californi a. 251 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]. ” 252 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 de minimis 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 . 253 A third case, in what arguably may be characterized as dicta , has indicated the same . 254 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 . 255 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 . 256 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 . 257 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.