©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 185 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.”275 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. Under California law, an 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 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.”276 6.10.4 Higher standard for employers to show undue hardship Federal law (Title VII) permits employers to refuse to provide religious accommodation for an employee if the accommodation would cause an “undue hardship.” In 2023, the U.S. Supreme Court decided Groff v. DeJoy and 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.”277 The Court stressed 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 lower courts in religious accommodation cases.278 Ten years earlier, 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.279 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.280 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].”281 In this regard, the U.S. Supreme 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.282
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