California's Fair Employment and Housing Act (the "FEHA") provides that California employees have the right to be free from religious harassment in the workplace.1 The FEHA prohibits "hostile work environment" non-sexual harassment, a form of workplace harassment that includes harassment on the basis of religion.2
This means that California employees who experience religious harassment have the right to take action--including by potentially suing their employer and/or the harasser.3
What is the definition of workplace harassment on the basis of religion?
Workplace harassment on the basis of religion falls under the category of "hostile work environment" harassment in California employment law. (Hostile work environment harassment is distinct from the well-known form of sexual harassment known as "quid pro quo" harassment.)
The legal definition of hostile work environment religious harassment under the FEHA is:
- An employee experiences unwelcome conduct or comments at work;
- This harassment is based entirely or in part on his/her religion; and
- This harassment is either pervasive or severe enough to alter the conditions of employment and create a hostile work environment.4
The "pervasive or severe" requirement is key to the definition of religious harassment. Isolated teasing or occasional bigoted/insensitive remarks do not rise to the level of workplace harassment.
Instead, the behavior must be either repeated/continuous OR extremely abusive, involving either serious humiliation or a threat to the victim's physical well-being.5
Does religious harassment have to be committed or condoned by a supervisor?
Anyone can commit hostile work environment harassment on the basis of religion. It is not necessary for a supervisor to be involved.6
However, an employee can only successfully sue an employer (as opposed to the harasser) for religion-based harassment if the employer behaves negligently with respect to the harassment. In most cases, this means that an employer or supervisor needs to have known about the harassment and failed to take reasonable steps to prevent or stop it.7
What is the difference between religious harassment and religious discrimination under the FEHA?
Harassment and discrimination can be hard to tell apart--especially since they sometimes occur together.
Religious harassment occurs when someone in the workplace mistreats another person based on their religion, in a way that falls outside the job description of the person committing the harassment.8
An example would be one coworker constantly making derogatory comments about another's religious beliefs. Making such comments is not an essential part of that person's job; hence it is religious harassment.
In contrast, employment discrimination on the basis of religion occurs when an employer or supervisor treats different employees differently because of their religion while performing acts that ARE part of that person's job description.9
An example here would be a supervisor who systematically gave promotions to Christian employees but denied such promotions to Jewish and Muslim employees. Deciding whom to promote is part of the supervisor's job duties--but s/he is performing those duties in a discriminatory way.
Do religious harassment laws apply to churches and other religious organizations?
The California Fair Employment and Housing Act specifies that workplace harassment laws do not apply to non-profit religious associations and corporations.10
This means that employees of religious groups in most cases cannot sue their employers for religion-based harassment--or religious discrimination, for that matter. The only exceptions are:
- Employees of health care organizations run by religious corporations, if the employee's job duties are not religious in nature and the organization provides health care that is not restricted to members of a particular religion; and
- Employees of religious schools (these schools are allowed to limit hiring and promotions to individuals of a particular religion but are not allowed to engage in religious harassment or other forms of discrimination).11
Call us for help....
For questions about harassment on the basis of religion under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California religious harassment law]. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”)
- Government Code 12965 GC -- Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [religious harassment lawsuits].
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California religious harassment law], endnote 1 above.
- Department of Health Services v. Superior Court (2001), 94 Cal. App. 4th 14.
- Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-70.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California religious harassment law]. ("(j) . . . (4) . . . (B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.")
- Government Code 12926.2 GC -- Religious employers and California harassment / discrimination law.