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Workers in California often assume that because religious beliefs are private, they never have to explain anything about their religion when requesting a workplace accommodation. While it’s true that employers cannot demand intrusive details, many employees make the opposite mistake: they refuse to provide even the basic information needed for the employer to evaluate their request.

Under both Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA), employees are protected from religious discrimination — but those protections only apply when the employee actually provides sufficient information for the employer to understand what accommodation is needed. Refusing to give essential information can legally justify the employer in denying that accommodation request.

Even though employers are generally not entitled to challenge, criticize, or judge your religion, they are entitled to confirm that the request for accommodation is religious in nature, what the conflict is between the belief and a job requirement, and evaluate various options for a reasonable accommodation. While you don’t have to share your life story or detailed theological explanations for your beliefs,  you also can’t take the position of “my beliefs are private, and I don’t have to tell you anything” when you request an accommodation. In fact, this type of approach will almost guarantee a denial of that accommodation request, and legally – the employer will likely be justified in doing so.

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1. Terminating an employee without consulting an attorney about the circumstances of that termination. Just because you believe that you have valid reasons for terminating an employee, who also happened to be “at will”, doesn’t mean that the same employee won’t be able to make it look like he was fired for an unlawful reason. Suppose you fire someone for poor performance, but that employee happened to complain about sexual harassment, or he filed a workers compensation claim just a few weeks or even a few days earlier. Will you be able to show, given this suspect timing, that the true reason for termination was in fact his performance, and it wasn’t retaliation? Or suppose you lay off a minority employee due to your changing needs or budget issues, but then just a couple of weeks later you get a new (and unexpected) round of funding and you post the same position back on Linkedin and end up hiring a white employee. Will that laid off employee come back and claim racial discrimination? These are just a few random examples of how a seemingly just termination can look less than entirely lawful. Consulting a reputable employment lawyer about your termination decisions before making that decision can make a difference between having a clean break-up with the employee in question v dealing with the stress, the expense, and the hassle of litigation. Remember – what matters is not what actually happened from your perspective, but what the employee can prove happened or most likely happened given all the surrounding circumstances.
2. Misclassifying an employee as exempt v hourly. To be salaried and exempt from overtime pay in California, your employee has to satisfy very specific requirements. In the context of tech start-ups, the most common exemption is an executive /  managerial exemption. However, just because you label someone at your company as a manager, doesn’t mean that that employee is correctly classified as exempt, unless over half of his job duties actually involve managerial work. This type of misclassification can be particularly costly, if that employee frequently works more than 8 hours per day without being paid overtime, which is very common in start-ups, and who will later be able to claim that he worked hundreds of fifteen-hour days for which he wasn’t paid correctly.

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FEHA & Reasonable Accommodation Basics

FEHA requires California employers with five or more employees to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an “undue hardship”. Reasonable accommodations may include changes to job duties, modified work schedules, assistive devices—and yes, in some cases – remote work.

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If you have little to no evidence that the employer discriminated against you and/or terminated your employment for unlawful reasons, then that case is likely not worth pursuing no matter how significant the damages are. After all, if you can’t establish liability, you would never even get to present your damages. On the other hand, if the evidence of liability is compelling, then even the case with relatively modest damages is likely to be worth pursuing because the employer is more likely to settle that case in the face of that unfavorable evidence. And, even if the settlement is not achieved, you will have a better shot at winning your case at trial.

Establishing liability is inherently challenging, because in an at-will employment relationship you as an employee have a burden of proving that the unlawful discrimination or retaliation was the reason or a substantial reason for your termination, demotion, or failure to select and hire you for a particular job. “What else could it be” alone is never sufficient proof in court.  Because “smoking gun” evidence of discrimination is rarely available, all the relevant circumstances surrounding the employer’s adverse action have to be carefully evaluated before deciding whether to pursue that case. This is often a judgment call that’s not based on black-and-white rules, and  is more of an art than science.

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In Avila v Continental Airlines, Inc. (2008), the employee was terminated for missing seven days at work, four of which were due to hospitalization for acute pancreatitis.  That employee had provided to his employer two medical forms that only indicated that he was seen for illness or injury and that he was unable to work for a number of days. Avila further stated that he gave the two medical notes to his supervisor, but could not recall if he gave them to the supervisor directly or left them on the supervisor’s desk. Avila also told his coworkers about his pancreatitis, but he did not directly discuss the illness with his supervisors.

After Avila was terminated he informed his supervisor that he was absent due to pancreatitis, but the employer refused to reinstate him anyway. In its opinion dismissing the disability discrimination portion of that case, the court found that Avila could not establish that the managers who terminated him knew about his disability, because the medical notes provided lacked diagnostic information or other information indicating the nature of the plaintiff’s illness or injury, and the plaintiff never told his supervisors about his pancreatitis.

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The court further noted that even though generally harassment by a supervisor is viewed more seriously than the same conduct by a co-worker, this is not a rigid rule. After all, many employees don’t see their manager very often, while having to work side by side with their (harassing) co-worker on a daily basis. The court also pointed out that not all co-workers are made equal. For instance, a coworker whom one sees at the water cooler is quite different than a coworker with whom one shares an office space or work duties.  Also, it matters whether a supervisor is aware / condones the harassing conduct by coworkers , thereby further emboldening that type of behavior.

There is no magic number of slurs that create a hostile work environment. What matters is looking at the totality of the factors when determining whether the conduct is sufficiently severe and pervasive to be actionable as a claim in court.

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