Employers in CA with 5+ Employees
April 3, 2023
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In Bolden-Hardge v. Office of the California State Controller, et al., the Ninth Circuit Court of Appeals stated that an employer cannot claim an undue hardship for a religious accommodation based on a conflict with the law if they do not have liability exposure if they make the accommodation.
Here, a California state employee was offered a promotion for which she would have to swear allegiance to the State of California. However, she was a Jehovah’s Witness who believed that she could not swear allegiance to any government over the Kingdom of God. She asked for an accommodation to acknowledge her primary allegiance to God but that she would seek in good faith to uphold the federal and state constitutions. An accommodation was refused and the promotion offer withdrawn. However, when she returned to her original position, she was required to swear allegiance but was offered an addendum with the language she requested. She filed suit claiming religious discrimination under the Fair Employment Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964.
The Ninth Circuit acknowledged that the state’s oath impliedly requires primary loyalty to the state over religion. Further, employers who could be penalized for making a religious accommodation are not required to offer the accommodation because it would be an “undue hardship.” Here, the state agency failed to show that it would incur liability for accommodating the employee by amending the oath, which was further highlighted by the fact that the office in which the employee held her original position offered her the oath with the requested amendment.
- Review anticipated denials for religious accommodation with legal counsel.
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