This week’s question comes from Manuel T. from Oakland, who asks:
Q: “I am a Seventh-day Adventist. Saturday is our Sabbath, and pursuant to our religion we are supposed to keep the Sabbath holy and not work. My manager recently changed my schedule to require that I work on Saturday. He knows I keep the Sabbath, and when I brought this up, he stated that I should “change my religion if it was interfering with the job.” In essence, he told me to either go against my religious beliefs or quit. I feel this is a real test of my faith. What are my legal rights? He also tells me that I should change my religion’s name to Sixth-day Adventist since we take Saturday for religious observance and not Sunday and laughs at me, saying that my religion can’t count.”
A: It is sad that in this day and age, religious discrimination continues to exist. I have been handling employment discrimination cases for 20 years now and have regularly seen these kinds of abuses, including discrimination against Jews, Catholics, Muslims, atheists and Seventh-day Adventists. I have seen cases where employers have demanded that employees pray and others where employers forbade it. Religion is so personal and polemic, it must be respected and accommodated.
The California Fair Employment and Housing Act prohibits discrimination based on religion. “It is unlawful employment practice for an employer because of the religious creed of any person to discriminate against a person in compensation or in terms, conditions, or privileges of employment” (Government Code, 12940(a)).
To prove discrimination, plaintiffs must show they were a member of a protected class, were competently performing the position held (or could have competently performed the position), suffered an adverse employment action and the action occurred under circumstances suggesting discriminatory motive.
Pursuant to the FEHA, it is an unlawful employment practice for an employer to discharge a person from employment or to discriminate against a person because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer demonstrates that it has explored available reasonable alternative means of accommodating the religious belief or observance and found no reasonable accommodation (Government Code 12940(j)).
Once the employee establishes a prima facie case, the employer must establish it initiated good-faith efforts to accommodate, or no accommodation was possible without producing undue hardship. (“Employment Discrimination: Law and Litigation Volume 1” by Merrick T. Rossein).
Under the FEHA, employers have a duty to reasonably accommodate a “religious belief or observance,” which includes observance of a Sabbath or other religious holy day or days.
Reasonable accommodation includes the possibility of “excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person” (Government Code 12940(l)). Under the California Code of Regulations, scheduling changes are one form of recognized reasonable accommodation.
Additionally, your manager’s conduct may create a hostile environment. Under the FEHA, hostile-environment harassment requires a showing that harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment” (Meritor Savings Bank FSB v. Vinson).
It should be noted that the abusive conduct alleged need not be both severe and pervasive — one or the other is sufficient.
Therefore, Manuel, it would appear that your manager needs to realize that he is in violation of the law. My suggestion to you is to document this conduct and file an official complaint with your company’s human resources department.
Hopefully they will take the right steps to remove this manager or severely discipline him.
Drop this article in your letter to HR and hand it to your manager. If they won’t take corrective action, then contact a trial lawyer skilled in the area of employment discrimination and harassment to help them get some religion.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to email@example.com.