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What is a "Religious Creed" Under California Law?

  • February 5, 2003

The article below appeared in the February 5, 2003 edition of the Daily Recorder.

Federal and state laws prohibit employers from denying employment or employment benefits to an applicant or employee on the basis of an individual's "religious creed," or lack of one. California's Fair Employment and Housing Act ("FEHA") defines "religious creed" broadly to include all aspects of religious belief, observance, and practice. However, many employers are unclear about what beliefs, observances, and practices may fit this definition. This is not surprising considering the definition of "religious creed" had not been construed by the courts in a published decision until last year.

On September 13, 2002, the California Court of Appeal rendered its decision in Friedman v. Southern California Permanente Medical Group. In that case, the court ruled that "veganisim" (a creed that proscribes the ingestion or use of any products derived from animals) did not qualify as a "religious creed" under FEHA. The court's analysis is instructive for employers faced with determining whether an employee beliefs, observances, and practices are protected under state law.

The Facts in Friedman

Jerold Friedman ("Friedman") was hired by a temporary agency to work for the defendants, a medical group, hospital foundation, and health plan, as a computer contractor. When Friedman was offered a permanent position with the organization, he was required to undergo a mumps vaccine as a condition of employment. Mumps vaccines are grown in chicken embryos. Because Friedman is a strict vegan, he refused to be vaccinated.

Friedman claimed requiring him to undergo the vaccination would violate his system of vegan beliefs, which include the belief that it is immoral and unethical for human beings to kill and exploit animals, even for food, clothing, and the testing of product safety for humans. Friedman asserted that such acts were a violation of "natural law" and his personal religious tenets, which prevent him from eating meat, dairy, eggs, honey, or any other food containing ingredients derived from animals, or wearing leather, silk, or any other material that is derived from animals or has been tested on animals.

After Friedman refused the mumps vaccination, defendants withdrew his employment offer and he filed suit. Friedman alleged defendants' withdrawal of the employment offer constituted religious creed discrimination and retaliation under the FEHA. The lower court dismissed Friedman's case on the basis that veganism was not a religious creed under the FEHA.

The Appellate Court's Decision

The California Court of Appeal upheld the lower court's decision and affirmed the dismissal of Friedman's complaint. In reaching its decision, the Court conducted an exhaustive analysis of federal and state case law addressing what is a protected religious belief or practice and determined veganism did not fall within the definition of religious creed under the FEHA and Title 2 of the California Code of Regulations, Section 7293.1.

Section 7293.1 defines "religious creed" as "beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions." The court found Friedman's veganism was a personal philosophy and a way of life and therefore did not meet the definition of religious creed.

The court began its analysis by concurring with the United States Supreme Court's observation that the "determination of what is a 'religious' belief or practice is more often than not a difficult and delicate task." It then concluded the best objective method for assessing whether Friedman's beliefs and practices had "a place of importance parallel to that of traditionally recognized religions" was to follow the test adopted by the United States Courts of Appeals for the Third , Eighth, Ninth and Tenth Circuits and first articulated by Third Circuit Court of Appeals in the 1979 decision Malnak v. Yogi. The Yogi test examines whether the "religious" belief is one that: (1) addresses fundamental and ultimate questions having to do with deep and imponderable matters; (2) is part of a religion that is comprehensive in nature and consists of a belief system as opposed to an isolated teaching; and (3) can be recognized by the presence of certain formal and external signs. The court found Friedman's veganism met none of these criteria.

First, although Friedman's veganism was based on sincerely held moral and ethical considerations, the allegations regarding his belief system made no reference to issues addressing the meaning of human existence, the purpose of life, theories of humankind's existence, or matters of human life and death.

Second, while Friedman's belief system governed his day-to-day behavior, including the food he ate and the clothing he wore, it did not derive from a power, being or faith to which all else was subordinate and, thus, was not sufficiently comprehensive in nature to fall within Section 7293.1.

Finally, veganism has no formal or external signs of a religion: there are no teachers or leaders, services or ceremonies, orders of worship or articles of faith, and no holidays. In sum, the court found Friedman's veganism was a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one's life based on that perspective.

The Less Stringent Title VII Standard

In reaching its conclusion, the court contrasted the narrow definition of "religious creed" in Section 7293.1 with the broad definition of "religion" in two other contexts: (1) Title VII, and (2) the Equal Employment Opportunity Commission's ("EEOC") interpretation of Title 29 of the Code of Federal Regulations Section 1605.1. Title VII, the Court noted, makes it an unlawful employment practice for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of its employees.

In interpreting the definition of "religion" under Title VII, both the federal courts and the EEOC have looked to the definition set forth in Section 1605.1. Under Section 1605.1, "religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." Acknowledging this definition involves a subjective analysis, federal courts have concluded Title VII leaves "little room for a party to challenge the religious nature of an employee's professed beliefs" and purely "moral and ethical beliefs" can be religious "so long as they are held with the strength of religious convictions."

Under Section 1605.1, a strongly-held moral or ethical view may qualify as a religious belief even though the view is essentially political, sociological, or economic, which clearly is not the case in California after Friedman. For example, Satanism has been recognized as a religion such that prisoners were entitled to a three-inch metal bell as an instrument of their faith. Also, the Five Percent Nation of Islam, founded by Clarence 13X in 1965, has received protection under Title VII as a religious belief. Even Rastafarianism has been adjudged to be a religious ideology entitled to protection under federal law.

Conclusion

The Friedman decision presents some good news for employers who face requests from their employees for accommodation of their religious beliefs. Employers now have some objective guidelines to follow in determining whether an employee's professed belief system is entitled to protection under California law. As a practical matter, if the belief system does not address fundamental questions about the nature of human existence and has no formal teachings (e.g., the Bible, the Koran), even if the employee claims to strictly follow it, it is not likely to be considered a protected religious creed under California law.

Nevertheless, as beneficial as the Friedman decision might be for employers, it does have its limits. California employers still must carefully assess whether an employee's professed belief system is protected under federal law. Beliefs in such non-fundamental concepts as cold fusion have been deemed entitled to protection, as have socially and politically unacceptable concepts such as white supremacy. To ensure compliance with both California and federal law, employers must keep both standards in mind when deciding whether an employee's belief system and practices are entitled to protection. Because of the difficulty and complexity inherent in harmonizing California and federal law, employers should consider seeking the advice of competent employment counsel in this area.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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