(October 19, 2012) Employers will need to change notices, postings and employee handbook policies related to discrimination and harassment prevention to reflect two recently signed bills, AB 1964 and AB 2386.
AB 1964 amends Government Code sections 12926 and 12940 and clarifies that the Fair Employment and Housing Act’s (FEHA) discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices.
As stated in the analysis of the bill, the intent is to “provide clarity and ensure that all religions receive equal protection under the law.” The added language states:
- “Religious dress practice” is construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of the observance by an individual of his or her religious creed.
- “Religious grooming practice” is also to be construed broadly and includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed.
Importantly, the law specifies that an accommodation is “not reasonable” if the accommodation requires segregation of the individual from other employees or the public.
Employers are required to make reasonable accommodations unless an accommodation is an undue hardship. The amended statute clarifies that the “undue hardship” definition that applies to other types of discrimination, also applies to religious discrimination.
AB 2386 amends California Government Code Section 12926 and makes it clear that breast feeding is protected by law and discrimination on that basis is illegal.
The new legislation was enacted, in part, to reflect a decision by the Fair Employment and Housing Commission (FEHC) in 2009 in which an employee was terminated because she was nursing her baby during her lunchtime break.
The FEHC’s decision was designated as having precedential authority, thus such discrimination is a violation of FEHA.
The amended Government Code definition of “sex” includes, but is not limited to:
- Pregnancy or medical conditions related to pregnancy.
- Childbirth or medical conditions related to childbirth.
- Breastfeeding or medical conditions related to childbirth.
The rest of the definition of “sex” remains unchanged:
“Sex” also includes a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.
The California Chamber of Commerce 2013 California and Federal Employment Notices Poster and Employee Handbook Software will include changes to policies and posters as a result of AB 1964 and AB 2386.