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Leveling the playing field, part III: What is a 'religion'

Legal and ethical rules governing claims of bias and discrimination

This month we continue our examination of the legal and ethical rules that govern cases of bias and discrimination in the legal profession. One area that continues to receive attention is the issue of what type of philosophy or world view qualifies legally as a “religion.”
What is a religion?

Religious belief is protected under Title VII as well as under many other laws and policies prohibiting discrimination. One of the questions that arises frequently, however, is the issue of what exactly constitutes religious belief. In Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39, the court determined that veganism does not constitute a religious creed within the meaning of the Federal Employment and Housing Act (FEHA). This case provides an excellent summary of state and federal decisional law analyzing the issue of what constitutes protected religious belief.

The court first defined the elements of religious creed discrimination as the requirements that the plaintiff hold a “bona fide religious belief” of which his or her employer was aware, and the belief conflicted with one of the requirement of employment (Id. at 45). In discussing the issue, the court cited California precedent observing that a religious belief must constitute something other than “a philosophy or a way of life,” but also noted that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection (citation).” (Id. at 46-47 [quoting Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1166]). Regarding federal law, the court cited from the Equal Employment Opportunity Commission (EEOC) guideline which defines religious practices “to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” (Id. at 55-56 [citing the standard developed in U.S. Supreme Court cases United States v. Seeger (1965) 380 U.S. 163 and Welsh v. United States (1970) 398 U.S. 333]). The fact that there is no religious group that adopts the specific beliefs that an individual holds or that the religious group he or she belongs to does not accept the beliefs are not determinative as to whether the employee's belief qualifies as a “religious belief.” (Id. at 56).

The court also noted that in order to be protected by Title VII, a religious belief “need not be ‘acceptable, logical, consistent, or comprehensible to others ...'” (Id. at 57 [citing Thomas v. Review Bd. of Ind. Employment Sec. Div (1981) 450 U.S. 707, 714]). Turning to non-traditional religious organizations, to which Title VII has also been applied, the court noted that in Peterson v. Wilmur Communications, Inc. (E.D. Wis. 2002) 205 F.Supp.2d 1014, the court held that the World Church of the Creator ó which espoused white supremacy, constituted a religion for Title VII purposes. (Id. at 58-59). The court reasoned that the church functions as a religion for the plaintiff because its teachings occupying “a place in his life parallel to that held by a belief in God for believers in more mainstream theistic religions.” (Id. at 59 [citing Peterson, 205 F.Supp.3d at 1021-1022]).

The court ultimately deemed the plaintiff's veganism to be a “personal philosophy” and a “way of life,” which is insufficient to qualify as a religious creed under the FEHA, although they left open the issue of whether a vegan lifestyle resulting from a protected religious belief would be protected. (Id. at 70-71).


Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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