DFEH / EEOC

April 22, 2024

Employers’ Obligations to Accommodate Religion Under Title VII

The Groff v Dejoy Postmaster General is a recent, significant Supreme Court case, which sets the employers’ obligation to accommodate employee religious practices. This case is extremely helpful to all those workers who need a religious accommodation at workplace, especially if it involves not working on certain days or holidays. In Groff, the highest Court has overturned a number of other decisions, which held that an employer is not required to “bear more than de minimus cost” in order to provide a religious accommodation.

The Supreme Court logically observed that these prior holdings are simply incompatible with the very language of Title VII, which requires employers to provide a religious accommodation unless it imposes “undue hardship” on their operations. “Undue hardship” is to mean a burden that is substantial in the overall context of an employer’s business. The Court further noted that even if the standard for relieving the employer of their obligation to accommodate was “hardship” and not “undue hardship”, it would still be a much higher standard than “more than de minimus cost”. The Court went on to reiterate this point: “What is most important is that “undue hardship” in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the common-sense manner that it would use in apply any such test.” The Court further observed: “An employer who fails to provide an accommodation has a defense only if the hardship is “undue”, and a hardship that is attributable to other employees’ animosity to a particular religion, to religion in general, or to the very notion of accommodation religious practice cannot be considered “undue”.

The Supreme Court also clarified that faced with an accommodation request such as Groff’s (a request to be exempt from working on Sundays), it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary. This is another reminder to employers (and employees as well) that both sides are encouraged to be creative when searching for appropriate accommodations, as there is no set list of options by law, and availability and reasonable of any considered accommodations depends on that employee’s job duties, the nature of employer’s business and their resources, and other factors unique to that specific situation.

May 7, 2022

To CA Employers Who Deny Exemption Requests From Cov-19 Vaccination

by Arkady Itkin

It is disappointing, to say the least, that so many employers in California continue require all of their employees to be “fully vaccinated” or be fired, given that we have now known for quite a while that the MRNA vaccines don’t prevent infection or transmission, and they are also most definitely not risk free. Moreover, the same employers continue to routinely deny their workers’ medical and religious exemption requests in violation of California Fair Employment and Housing Act. According to a recent data, for instance, Marin County apparently only granted 11 such exemptions out of hundreds requested by their employees.

Many lawsuits for these unlawful exemption denials have already been filed all around the country. We also hope to be involved in as many such cases as possible, in order to participate in this extremely important fight against continuing, unscientific and unlawful coercion. We foresee that it will be particularly difficult for employers to justify denying an exemption to workers who are expected to work remotely, especially if they remote indefinitely. What rational basis can there be to insist that a worker, who never comes in physical contact with his co-workers or clients / customers, be vaccinated, and how is it that employer’s business?

Some employers deny exemption requests for political / partisan reasons. That is, they are already unhappy that the same employee chose not to get vaccinated, so now they are trying to make his life more difficult by unreasonably denying an exemption. If this type of spiteful motive is proven in court, it will make that employee’s case much stronger.

June 23, 2018

New 2018 Law Regarding Criminal Background Checks in California

by Arkady Itkin

As of January 1, 2018, a new law in California adding Government Section 12952 to California Fair Employment and Housing Act went into effect. This new law states that it’s is unlawful for employers with five or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer. Employer also shall not consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: arrest not resulting in conviction, referral to or participation in pre-trial or post-trial diversion program, or convictions that have been sealed, dismissed, expunged, or legally eradicated pursuant to law.

This new law should help thousands of job applicants with prior criminal history get their foot in the door, as it prohibits any consideration of criminal history until after a conditional employment offer has been made. Further, once an offer has been made and a criminal background check is allowed, the employer cannot simply rescind the job offer because of that criminal history. The law imposes additional requirements on an employer to conduct an individualized assessment about whether a job applicant’s conviction history would negatively impact his ability to perform his job duties. AB 1008 requires that employer assess the following in making that decision: the nature and gravity of the offense, the time passed since the offense or conduct and completion of the sentence, and the nature of the job held or sought.

If the employer ultimately decides to deny employment to the candidate based on the above assessment, then it must provide the applicant with a written notification of the decision. That notification must include notice of the disqualifying conviction, a copy of the conviction history report, and an explanation of an applicant’s right to respond before the decision not to hire is final. If the job applicant decides to dispute the conviction history and notifies the employer in writing of the same, the employer must provide at least five additional days to the applicant to do so, and must consider any additional evidence provided by the applicant in making its final hiring decision.

April 9, 2017

What To Expect From EEOC of DFEH Investigation?

by Arkady Itkin

EEOC (Equal Employment Opportunity Commission) and DFEH (Department of Fair Employment and Housing) are two main administrative agencies charged with address workplace discrimination. EEOC is federal agency, while DFEH is its California counterpart. These agencies pursue a very small number of cases that they pick from all the many inquiries they receive every year. EEOC investigation can take anywhere between 4-6 months and up to a year or longer, depending upon how busy your local EEOC branch is, the nature of allegations and the degree of cooperation of the employer with the process. A charge of discrimination must be filed within one year of the most recent discriminatory event. Obviously, if you believe you were terminated for discriminatory reasons, your termination would be that most recent event.

Most complaints received by these agencies result in no findings, and and issuance of a right to sue letter many months after a complaint is submitted. This is in part because these agencies have limited resources, and in part because many inquiries are either very hard to investigate or they simply have no merit. However, obtaining a right-to-sue letter is a requirement before a lawsuit for discrimination can be filed in California.

In some cases, allowing those agencies to investigate your discrimination allegations is a good idea. In other situations, especially if you have a strong case, it’s better to obtain an immediate right-to-sue letter, which can be done online through an attorney, and file a lawsuit without delay. This is especially important if there is a concern that with time evidence will “disappear” and witnesses will become unavailable.

February 15, 2012

Why You Should Not Wait for DFEH / EEOC to Complete Its Investigation

by Arkady Itkin

Although there are sometimes strategic advantages to waiting for the Department of Fair Employment and Housing (DFEH) or EEOC to complete its investigation of a charge of discrimination instead of filing a lawsuit right away, in many cases, waiting for that might not be the best strategic move, especially if you have already been (wrongfully) terminated and you have a “good” case. This is for two main reasons:

1. DFEH / EEOC rarely issues favorable findings to an aggrieved employee. It seems that in 90% or more of the cases investigated, DFEH concludes that there is insufficient evidence of discrimination and they issues a right to sue letter. This is in large because DFEH has limited resources, and cannot possibly thoroughly investigate every case. In most cases, the investigation of discrimination allegations is limited to interviewing the aggrieved employee and the employer. The employer always denies any wrongdoing, so DFEH has to pick whose word to take. The agency must pick their fights and attend to the most urgent and egregious cases that either affect a larger group of employees or set an example out of a particularly bad employer. They will not issue findings against an employer if the evidence seems to suggest that it’s a 50/50 call. An investigation may take from several months and up to a year or more. The right to-sue-letter issued by the agency is a necessary prerequisite to filing a lawsuit, but can be obtained by an attorney online in about 10 minutes without any actual involvement of DFEH.

2. Waiting for a year or longer to file a lawsuit can also create issues of proof, and make your case harder to win or settle. Memories of events tend to fade, documents get misplaced, lost or “intentionally” lost by employers. E-mails get deleted (often a single e-mail can be of critical important to proving a discrimination or retaliation case). Witnesses tend to move away or change their mind about helping you to testify and corroborate your version of the events. Even if you decide to wait for DFEH to complete its investigation, it is important that you secure sworn statements that are written in a proper form by your witnesses. Doing your “homework” early may prove to be very helpful later in the case, especially when the employer files a motion for summary judgment, which they almost always do, if the case is litigated in court long enough.