2004-20

Attendance At A Voluntary Religious Convention Constitutes A "Religious Observance" Under The FEHA.

The California Court of Appeal, Second Appellate District, reversed a judgment for employer Gemini Aluminum Corporation ("Gemini") and found substantial evidence to support the Fair Employment and Housing Commission's ("the Commission") decision that Gemini discriminated against its employee Lester Young by failing to accommodate his religious beliefs, failing to prevent discrimination, and retaliating against him for protesting the discrimination, all in violation of the Fair Employment and Housing Act ("FEHA"). (California Fair Employment and Housing Commission v. Gemini Aluminum Corporation, 2004 DJDAR 12140 (Cal.App.2nd Dist., Div. 4, September 29, 2004) (1)

Young, a Jehovah's Witness requested two days off to attend a Jehovah's Witness Convention. He made the request to his supervisor, Jack Kaufman, who was responsible for taking the request to management and who was also a member of the management committee that would consider the request. Kaufman submitted a written request for Young, but the committee denied the request for failure to include the reason. Kaufman resubmitted the request, this time stating the reason was to attend a religious convention. The request was again denied. Young spoke with Kaufman about his religion and explained why he needed the days off. Young said his local congregation encouraged all of their members to attend the convention and it was his responsibility to be there. Despite being denied the time off, Young took off one day of work to attend the convention.

When Young returned to work, he was given a ten day suspension for failing to show up for work on Friday and Saturday, despite the fact he had not been scheduled to work on Saturday. Young protested the suspension, telling Kaufman he thought it was unfair because he felt obligated to attend the convention for his religion and he know others who received lesser suspensions for more absences. Thereafter, Young told Kaufman that he was going to the "Labor Board." Kaufman conveyed this discussion to the management committee and, few days later, Young was fired.

Young filed a religious discrimination complaint with the Department of Fair Employment and Housing ("DFEH"). The Commission ruled that Gemini had discriminated against Young. Gemini filed a petition for writ of administrative mandate in the Los Angeles County Superior Court. The Superior Court found the Commission's findings were not supported by substantial evidence, granted Gemini's petition, and directed the Commission to vacate its decision. The DFEH appealed.

The appellate court reversed. Under the FEHA it is an unlawful employment practice for an employer to discriminate against a person because of religious creed. It is also unlawful to discriminate against employees because of a conflict between the person's religious belief or observance and any employment requirement unless the employer can demonstrate that it has exercised any available reasonable alternative means of accommodating the religious belief or observance. The statute does not limit "religious beliefs" to Sabbath observances or other religious holy days. Rather, it includes all aspects of religious belief, observance and practice. Thus, an employee establishes a prima facie case of religious discrimination under the FEHA where: the employee sincerely holds a religious belief, the employer is aware of that belief, and the belief conflicts with an employment requirement.

Young had been a Jehovah's Witness since 1970 and testified that he considered attending the Jehovah's Witness Convention to be a form of worship and religious study. Gemini argued that the evidence was not sufficient to establish a bonafide religious belief and noted that Young did not testify that he was required to attend the convention. The court stated that under California law an employer is required to accommodate not just a religious belief, but also a religious observance, if it is reasonably possible to do without undue hardship. There is nothing in the language of the FEHA that obligates an employer to accommodate only those religious practices that are required by the tenets of the employee's religion.

The court also found that Gemini was aware of Young's belief and its conflict with an employment requirement. Gemini contended that it did not have to accommodate Young's request until he explained his religious beliefs and provided enough information for Gemini to understand the significance of the convention and how his attendance was tied to his religious beliefs. The court disagreed, observing that an employee need only cite to a religious connection, and does not have to provide an employer a complex explanation.

The appellate court concluded that the DFEH established a prima facie case, thus shifting the burden to Gemini to establish that it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. But Gemini did not assert hardship and it failed to initiate any effort to accommodate Young's religious beliefs. If the time Young requested off conflicted with Gemini's needs, rescheduling would have been an appropriate subject to raise in attempting to accommodate the religious belief or observance. Young was never asked to appear before the management committee, was never asked for more information about the convention and was never contacted personally by anyone other than Kaufman.

The court next considered the retaliation claim. An employee states a FEHA retaliation claim by showing he engaged in a protected activity, his employer subjected him to adverse employment action, and a causal link exists between the protected activity and the employer's action. Young testified that when Kaufman informed him of the committee's denial, he protested the decision, telling Kaufman it was his religious responsibility to go, then took off one day to attend. Three days later he was suspended. After learning of his suspension, Young told Kaufman that it was unfair because his need to attend the convention was a religious one. Young called Kaufman a few days later and told him that he was going to the Labor Board on July 9th and Kaufman told the management committee about this conversation. On July 9th, Young filed an administrative complaint regarding his suspension and, on the same day, Gemini's management committee met and decided to terminate Young.

Informal complaints to management about discriminatory practices are sufficient to trigger the prohibition against retaliation. Young engaged in protected activities by: (1) protesting Gemini's failure to attempt to accommodate his religious observance, (2) complaining to Kaufman that the suspension was unfair because of his religious needs, and (3) telling Kaufman that he intended to go to Labor Board. The court concluded that Gemini's awareness of the protected activities and the adverse action that followed within a relatively short time were sufficient to raise an inference of causal connection.

The court then reviewed Gemini's stated legitimate, nondiscriminatory reason for terminating Young. Gemini fired Young because it believed he had been "blatantly insubordinate and failed to comply with its attendance policy by not providing documentation of his June absences." But the company's president, Allan Hardy, gave conflicting testimony about whether the absence of documentation really did cause him to terminate Young. The court concluded that the enforcement of the policy was not rigid and that Young would not necessarily have been fired for violating it, had he spoken personally to Hardy or written him a personal note.

Finally, the court discussed FEHA's requirement that an employer "take all reasonable steps necessary to prevent discrimination" in the workplace. One such "reasonable step" is a prompt investigation of discrimination claims. But Gemini made no investigation and, instead, retaliated. Other "reasonable steps" include establishing and promulgating anti-discrimination policies and implementing effective procedures to handle complaints and grievances regarding discrimination. Gemini, however, had not developed a complaint or a grievance procedure regarding discrimination and had no policy addressing religious accommodation. The court concluded that Gemini took no reasonable steps to prevent discrimination.

Back to Top | Back to Summaries

Corporate Reorganization Resulting In Demotion Of Female Administrative Managers Over 40 Is Not Discriminatory.

In Carter vs. CB Richard Ellis, Inc., 2004 DJDAR 12339 (Cal.App.4th Dist., Div. 3, October 4, 2004) (2) the Court of Appeal reversed the trial court's denial of defendant's motion for judgment notwithstanding the verdict ("JNOV") and found that plaintiff's evidence was insufficient to establish a prima facie case of disparate impact sex or age discrimination or a breach of contract claim.

Plaintiff Helen Carter was hired by CB Richard Ellis, Inc. ("CBRE") in 1969 as a word processing secretary. She was 21 years old at the time of hire and was employed by defendant for 30 years. During her tenure, she received several promotions and eventually became the regional administrative manager for defendant's Orange County region and administrative manager for its Newport Beach office. As of 1998, only one of CBRE's administrative managers was male and more than half of them were over 40. There were 10 administrative managers in Southern California, all female, and 8 were over the age of 40. Like plaintiff, most of these administrative managers had begun working for the company as secretaries and, over time, were given additional responsibilities. When administrative manager openings occurred, nearly all of the applicants were women.

In the late 1990's, CBRE underwent a major structural reorganization. Under the reorganization plan, many of the former responsibilities of the administrative managers would be transferred to specialists in one of nine newly-created regions and some of the existing administrative managers would qualify for these new regional positions.

As a result of the restructure, plaintiff's title changed and, while her salary remained the same, she was no longer eligible for bonuses, which had been a significant part of her compensation. Approximately 15 of the 57 former administrative managers were eventually promoted to one of the new regional positions. Those promoted were all women and most were over the age of 40. Plaintiff applied for two of the positions, but these jobs were filled by other women. In October 1999, plaintiff was offered a position as "Senior Office Services Administrator" at an increased salary, but she declined the offer and resigned in November 1999.

Plaintiff sued defendant for disparate impact discrimination based on her gender and age. She also sued for breach of contract, claiming she had a contract not to be demoted without good cause. The jury returned a verdict for plaintiff, finding that CBRE's company-wide administrative reorganization had caused a disparate impact on women employees and those over the age of 40. The jury also found defendant liable for breach of an employment agreement not to demote without good cause. The trial court denied defendant's JNOV motion, but conditionally granted a new trial on the contract cause of action and on the amount of damages caused by the discrimination, unless plaintiff agreed to a reduction of her damage award. Plaintiff rejected the remittitur and defendant appealed the denial of (1) its JNOV motion and (2) its new trial motion on the liability element of the discrimination claim. The appellate court reversed.

Disparate impact discrimination occurs where, regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, has a disproportionate adverse effect on members of a protected class. Plaintiff contended that the defendant's reorganization caused disparate impact on women and those over 40 because the reorganization demoted administrative managers, all but one of whom were women, and half of whom were over 40. But the evidence showed that women were not affected as a group, person's over 40 were not affected as a group, and only administrative managers were affected as a group.

The court found that plaintiff failed to establish a prima facie case of disparate impact discrimination. Her entire case was based on the erroneous premise that administrative managers were a protected group because administrative managers were almost all women and about half were over the age of 40. Plaintiff offered no evidence regarding the gender or age composition of all of defendant's employees. She also failed to provide evidence of the total impact on women or those over 40. Rather, the evidence was about the effect of the reorganization on administrative managers, as if this group were protected by law. The court noted that plaintiff utilized the law's prohibition of discrimination against women and those over 40 "as a diversionary tactic to conceal the real complaint ? an adverse employment action taken against a very limited subset of a protected group ? not because of their status as members of the protected group, but because of their status as members of the limited subset." At most, the evidence established a disparate impact on administrative managers, not a protected group such as women or persons over 40.

The evidence was also insufficient to establish a contract. The contract claim arose from statements made during plaintiff's initial interview in 1969. She was told the salary for her position, that there were annual increases based upon performance and, as long as she did a good job, she would get merit increases based on her performance. Based on this representation, plaintiff concluded that she had a contract that allowed a change in her job duties and responsibilities, but not demotion or termination or any other adverse effect upon her employment. The court stated that the plaintiff's conclusion "that these words of encouragement constituted an enforceable promise that she would never be subject to a change of job assignment, that she would never be demoted from a job never promised to her (and which she would not obtain for another 15 years), or that her future job would never be reclassified for reasons unrelated to her individual performance, are speculative, conjectural, and patently unreasonable." If the law were otherwise, employers would have to withhold all words of encouragement to new employees for fear of actionable consequences.

Back to Top | Back to Summaries

1. Opinion by Hastings, Acting P.J., joined by Curry, J. and Grimes, J. [Judge of the Los Angeles Superior Court sitting by assignment]).

2. Opinion by Ikola, J., joined by Sills, P. J., and Aronson, J.