California Workplace Harassment on the Basis of Religion

California’s Fair Employment and Housing Act (the “FEHA”) provides that you 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 if you experience religious harassment in the workplace, have the right to take action–including by potentially suing your employer and/or your harasser.³

What is workplace harassment based on 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:

1. You experience unwelcome conduct or comments at work;
2. This harassment is based entirely or in part on your religion; and
3. 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 your physical well-being.⁵

(This same definition of harassment applies to numerous other forms of non-sexual harassment as well, including harassment on the basis of sexual orientation, race, national origin, disability, etc.)

Does the harassment have to be 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, you 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?

Harassment and discrimination can be hard to tell apart–especially since they sometimes occur together.

Religious harassment occurs when someone in the workplace mistreats you based on your 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 you differently because of your 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 they are performing those duties in a discriminatory way.

Do these harassment laws apply to 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 if you work for a religious group, in most cases you cannot sue your employer for religion-based harassment–or religious discrimination, for that matter. The only exceptions are:

• You work for a health care organization run by a religious corporation, if your job duties are not religious in nature and the organization provides health care that is not restricted to members of a particular religion; and
• You work for a religious school (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

Additional reading

For more in-depth information, refer to these scholarly articles:

• Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion – Cornell Law Review.
• Religious Discrimination in the Workplace: A Review and Examination of Current and Future Trends – Journal of Business & Psychology.
• Employment Law: Congress Giveth and the Supreme Court Taketh Away: Title VII’s Prohibition of Religious Discrimination in the Workplace – Oklahoma Law Review.
• Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations – Columbia Law Review.
• Religious Discrimination Based on Employer Misperception – Wisconsin Law Review.
• Delimiting Title VII: Reverse Religious Discrimination and Proxy Claims in Employment Discrimination Litigation – Vanderbilt Law Review.

---

Legal References: