Metropolitan News-Enterprise


Thursday, September 30, 2004


Page 1


Court of Appeal Rules:

Worker Wrongfully Denied Leave to Attend Religious Convention


By KENNETH OFGANG, Staff Writer/Appellate Courts


An employer violated the Fair Employment and Housing Act by failing to accommodate an employee’s request for two days off to attend a religious convention, the Court of Appeal for this district ruled yesterday.

Div. Four reinstated a Fair Employment and Housing Commission award in favor of Lester Young, a Jehovah’s Witness who accused Gemini Aluminum Corporation of suspending him for attending the convention, then firing him when he said he intended to file a formal complaint over the suspension.

Los Angeles Superior Court Judge David Yaffe had overturned the award, saying it was not supported by substantial evidence. But Justice J. Gary Hastings, writing for the Court of Appeal, said the testimony given at the administrative hearing was sufficient to find the company violated FEHA by failing to accommodate, by retaliation, and by failing to adopt and follow policies to protect employees from religious discrimination.

FEHA, Hastings noted, requires that employers accommodate employees’ “religious belief or observance,” a phrase which “includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance,” according to the statute.

Needs Explained

The evidence, the justice explained, showed that Young explained his religious needs to his supervisor, who also sat on the management committee that denied his request. Young told the supervisor that members of his faith are required to attend whatever convention their congregation is assigned to attend, as a matter of religious study and worship, Hastings noted. 

The justice cited testimony by Young’s daughter that the family had attended the conventions yearly, beginning long before Young went to work for Gemini. She acknowledged that the family skipped the convention one year to go on vacation, however.

The company cited that testimony in arguing that there was no “temporal mandate” for Young to miss work on specific dates to attend the convention. But Hastings said there is no “temporal mandate” requirement under FEHA.

Case Distinguished

He distinguished Tiano v. Dillard Dept. Stores, Inc. (9th Cir. 1998) 139 F.3d 679, which Hastings said is the only published case to use the phrase “temporal mandate.” The court in that case said that a retailer did not violate the rights of a Catholic salesperson by denying her permission to go on a religious pilgrimage to Yugoslavia during a busy period in which no employees were allowed to take leave under company policy.

The Ninth Circuit reasoned that since the church did not impose a mandate that devotees make a pilgrimage at that particular time, there was no requirement that the employer give the employee time off to do so.

But Hastings wrote:

Tiano is alone in ruling that Title VII requires proof of a ‘temporal mandate’ under the tenets of an employee’s particular religion. The relevant inquiry is the sincerity, not the verity of the employee’s religious beliefs.”

The evidence was clear that Young, a member of the faith since 1970, was sincere in his beliefs, Hastings said.

The case is California Fair Employment and Housing Commission v. Gemini Aluminum Corporation, B165771.


Copyright 2004, Metropolitan News Company