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Employment Development Department
Employment Development Department

Able and Available AA 90

Conscientious Objection Based On Religious, Ethical, Moral or Philosophical Beliefs

This Section deals with situations in which individuals restrict the hours or days they are available for work or place other restrictions on acceptable employment due to conscientious objections.

A. Conscientious Objection Defined

Conscientious objection means an objection by an individual to performing an act which that individual sincerely believes is wrong. The objection may be based on religious, philosophical, ethical, or moral grounds. When directly related to working conditions, a true conscientious objection is considered to be a compelling reason for restricting availability for work.

An essential factor to be considered in determining whether a restriction on availability can be attributable to conscientious objection is whether the claimant genuinely believes that the objectionable action or condition conflicts with his or her convictions or whether the claimant merely chooses, for other personal reasons, to place a limit on acceptable employment. The degree to which the claimant’s beliefs are commonly held or considered reasonable by others is immaterial

B. Effect of Restrictions on Eligibility

In Sanchez v. CUIAB, the California Supreme Court defined the availability for work requirement of Section 1253(c) as follows:

"Availability for work" within the meaning of Section 1253, subdivision (c), requires no more than (1) that individual claimant be willing to accept suitable work which he has no good cause for refusing and (2) that the claimant thereby make himself available to a substantial field of employment."

A bona fide conscientious objection can be considered a compelling reason for restricting availability for work. Therefore, in accordance with the Sanchez decision, if the claimant restricts availability due to a conscientious objection but remains available to a substantial field of employment, he or she would be eligible for benefits under Section 1253(c). On the other hand, if the claimant is not available to a substantial field of employment, the claimant would be ineligible for benefits despite the compelling nature of the restriction. The department has the burden of establishing whether or not there is not a substantial field of employment remaining.

In contrast, when the claimant’s restriction is based on personal, noncompelling reasons rather than on a conscientious objection, he or she would be ineligible for benefits if his or her availability was materially reduced by the restriction.

C. Religious Beliefs

The First Amendment to the United States Constitution provides, in part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."

There are various cases from the United States Supreme Court which are applicable in the unemployment insurance context. While the individual cases do not deal specifically with the issue of availability, the principles are applicable.

In Sherbert v. Verner (1963), Ms. Sherbert, a member of the Seventh-Day Adventist church, worked in a textile mill. She worked five days a week, Monday through Friday. However, the employer changed the work week to a mandatory six days a week, three shifts a day, including Saturdays. She was discharged by the employer because she would not work on Saturdays. Ms. Sherbert filed a claim for UI benefits and was disqualified under the South Carolina statute. Both the county court and the South Carolina Supreme Court affirmed the department’s decision, and Ms. Sherbert requested review by the U.S. Supreme Court.

In their decision, the Justices held that a law that forces her to choose between following the precepts of her religion and risking the loss of benefits, or alternatively, abandoning the precepts of her religion to gain those benefits, places the same burden on religion as would a fine imposed for her Saturday worship. She was effectively penalized when the state conditioned the availability of benefits upon her willingness to violate her beliefs.

Justice Douglas, in a concurring opinion, stated:

"This case is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples."

The Sherbert court also commented: " . . . By our decision today, (we do not) declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment."

In Thomas v. Review Board of the Indiana Employment Security Division (1981), the Supreme Court addressed the claimant’s religious conviction which was not a tenet of the claimant’s faith. Mr. Thomas, a Jehovah’s Witness, was employed by a foundry to fabricate sheet steel. A year after his hire, the foundry closed. He was transferred to a related department that made tank turrets; there was no nonmilitary work to which he could transfer. He felt that the manufacture of military arms violated his religious convictions, although a co-worker advised him the work was not forbidden by their religion. He decided he could not, in good conscience, do the work; as a result, he quit and was denied UI benefits under the Indiana statute. The Board affirmed the findings, the Court of Appeals reversed, and the Indiana Supreme Court, in reversing the appellate decision, held that good cause to leave work must be job-related and objective in character; his belief was "more a personal philosophical choice than a religious belief."

On review to the U.S. Supreme Court, the justices held that religious beliefs need not be "acceptable, logical, consistent, or comprehensible" to merit protection. That court reiterated its holding in Sherbert that:

"Where a state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."

In both Sherbert and Thomas, termination resulted from acceptable employment that became religiously objectionable because of changed conditions. In Ms. Sherbert’s case, her objection was an established tenet of her faith; in Mr. Thomas’ case, his objection was a sincere religious conviction which was not rooted in any particular faith.

Next, in Hobbie v. Unemp. Appeals Commission of Florida, a 1987 Supreme Court case, the Court addressed the concept of changed circumstances, holding that an objection does not have to exist at the time the employment was commenced.

Mrs. Hobbie was a clerk in a jewelry store. Three years after she was hired she became a member of the Seventh-Day Adventist church. She told her employer she could no longer work Friday evenings or Saturdays because of a tenet of her faith. After a short period of accommodation by her immediate supervisor, who scheduled himself for work on her Friday evenings and Saturdays in exchange for her working his Sundays, the general manager discovered the scheduling change and gave her the option of working her regularly scheduled shifts or leaving. When she refused to do either, she was discharged. Administrative appeals and the Florida Fifth District Court affirmed her disqualification.

One of the arguments used by the state before the U.S. Supreme Court was that Ms. Hobbie, herself, was the "agent of change" and she was therefore responsible for the consequences; they contended it was "unfair for an employee to adopt religious beliefs that conflict with existing employment and expect the employment to continue without compromising those beliefs." The U.S. Supreme Court found:

"The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired."

In Frazee v. Illinois Department of Employment Security (1989), the U.S. Supreme Court addressed the applicability of First Amendment rights to those who had religious convictions but were not members of an established sect or church. Mr. Frazee was offered a temporary retail position that would have required him to work Sundays. He refused, on the basis of a "personal professed religious belief." He was not a member of a church and his belief did not stem from any tenet, belief, or teaching of an established religious body. The state contended that religious convictions must be attached to the body of belief of a church, sect, or denomination, and denied benefits, finding that the claimant’s personal beliefs, by virtue of being personal, were therefore noncompelling. In its decision, the Supreme Court found:

"Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Under our cases, he was entitled to invoke First Amendment protection."

The Court also held:

"Nor do we underestimate the difficulty of distinguishing between religious and secular conviction and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause."

In a California Appellate Court case, Jaffe v. Calif. Unemp. Ins. Appeals Board, the Court directly addressed the application of Section 1253(c) to religious convictions. The claimant was disqualified under UI Code Section 1253(c) for being unavailable for work during two days of his claim week. Mr. Jaffe, an Orthodox Jew, was disqualified under UI Code Section 1253(c) for being unavailable for work during two days of his claim week, during Rosh Hashanah, the Jewish New Year. The Appeals Board affirmed the denial of benefits.

The Superior Court reversed the Board and ordered Jaffe be paid for the week, minus 2/7 for the two days he was unable to work. The State appealed the "minus 2/7ths ruling," contending that (1) benefits are payable on a weekly basis only; (2) a temporary suspension of benefits is constitutional whereas a total and permanent disqualification from benefits is not; (3) there was a compelling state interest; and (4) there was no labor market remaining in that week.

The Superior Court reaffirmed the holding in the earlier cases (that the denial of the entire week’s benefits violated Mr. Jaffe’s free exercise of religion) and found that he met the Sanchez criteria for payment of benefits. But because the state has an "interest in establishing that a claimant is available for work and is not paid for religious holidays" in violation of the Establishment Clause, that court held that he could not be paid for the two days’ during which he was unavailable.

The Court of Appeal affirmed the Superior Court’s holding, and likened UI Code Section 1253(c) to Section 1253.5, unavailability for work due to illness, finding:

"An interpretation of Section 1253, subdivision (c), which permits apportionment of benefits on a daily, rather than weekly, basis is constitutionally compelled in the circumstances of this case. Statutes are, whenever possible, construed to avoid constitutional infirmity. The interpretation which we give to Section 1253, subdivision (c), does precisely that."

P-B-1 also dealt specifically with the availability of a claimant who restricted acceptable employment as a result of religious convictions. In this case the claimant was a construction laborer and a member of the construction laborers union in Oroville. The major employers of construction laborers in the Oroville area required that such employees be available for work on three shifts: the day shift, the night shift, and the swing shift.

Because the claimant was a member of the Seventh-Day Adventist Church and had always conformed to the tenets of that church which prohibits work on the Sabbath, sunset Friday through sunset Saturday, he would accept work only on the day shift, Monday through Friday. All of the claimant’s experience as construction laborer had been gained by working during the daytime hours. In addition to his experience as a construction laborer, the claimant had worked as a hospital orderly. The tenets of his church do not restrict the administering of aid to the sick or disabled and as a hospital orderly the claimant may, within the precepts of his religion, work any hours. The claimant imposed no other restrictions on acceptable work. In holding the claimant eligible, the Board stated:

"In this case the claimant, because of his religious principles, imposes a restriction on acceptable work which does, in fact, eliminate a certain portion of the labor market. However, this restriction does not eliminate any part of the labor market for hospital orderlies, an occupation in which the claimant has had experience. Nor does it eliminate the possibility of the claimant obtaining work as a construction laborer as shown by the facts that all of his work experience as a construction laborer has been obtained during the day shift . . . . It is clear that within the principles expressed in our prior decisions, the restriction on acceptable work imposed by the claimant because of his religious convictions did not render the claimant unavailable for work. There remained a labor market for his services in which he could reasonably expect to obtain employment."

D. Ethical, Moral, or Philosophical Beliefs

Objections to working conditions may also be based on personal beliefs which might be an integral part of an individual’s code of ethics, morals, or philosophy of life without being related to religious beliefs. It will generally be difficult to determine if the individual sincerely believes that performing a particular act would be wrong since ethical, moral, or philosophical beliefs are often unique to the individual and unrelated to the doctrine of any organization that might substantiate the sincerity of the person’s belief. Perhaps because of this difficulty, there are no precedent decisions of the Appeals Board or of the courts which have directly addressed the question as to when ethical, moral, or philosophical beliefs constitute genuine conscientious objections.

Some guidance is provided, however, by the California Supreme Court’s decision in Syrek v. CUIAB (1960), which dealt with the matter of good cause for failure to apply for suitable work when referred by the Department. The claimant, in this case, had been referred by the Department to a job opening for a civil service position with Alameda County. The claimant failed to apply for the position because he objected to taking a loyalty oath, which, at that time, was required under California law as a prerequisite for government employment. The claimant specifically objected to the portion of the oath which required an individual to affirm that he or she would not, in the future, advocate the overthrow of the government by force or violence. At the appeals hearing, the claimant explained that if the government of the United States became a dictatorship, as had the government in 1776, he would advocate its overthrow, and, therefore, he could not sign an oath to the contrary. There was no evidence that the claimant had committed any disloyal acts, nor that he was associated with any subversive organization, nor that he had made any statements urging the overthrow of the existing government.

In holding that the claimant had good cause for failure to apply for the civil service position, the Court reasoned as follows:

"The state has a vital interest in having as its employees, and as employees of its political subdivisions, only those who conscien-tiously can take the loyalty oath prescribed in . . . the Constitution of California . . . . We conclude that there is good cause, under Section 1257 of the Unemployment Insurance Code, from the standpoint of the public interest, for an applicant for benefits to refuse to take an oath to which he cannot conscientiously subscribe . . . . We do not hold that an applicant for unemployment benefits may simply announce that he does not care to apply for positions with government, nor that he may do so upon his announcement that he does not agree with the loyalty oath requirement in general, nor that he may do so . . . if his objection is simply antipathy to the requirement, because such a case is not before us. We do hold that when an applicant declines to take the oath and states his own conscientious objection to the taking, and there is no finding that his stated objection is a sham for the purpose of avoiding work or is otherwise false, the applicant may not be denied such unemployment insurance benefits as would otherwise be payable."

Although not addressed by the court, good cause for the failure to apply for employment would also constitute good cause for restricting availability for work.

In most cases, it will not be necessary or appropriate to determine whether an individual’s personal beliefs constitute a bona fide conscientious objection since the matter of whether good cause exists can be evaluated by focusing on the precise reason for the restriction. For example, a claimant may be unwilling to work full time because such work would interfere with the completion of his or her college education, which the claimant believes of paramount importance. In a case such as this, the claimant’s eligibility would not be contingent on whether the restriction could be attributed to a conscientious objection because Section 1253.8 of the UI Code sets out the conditions which a student must meet in order to be considered available for work. The pertinent discussion of this topic would be found in AA 40, Attendance at School or Training.

However, it is recognized that there may be situations, which are not discussed elsewhere in the BDG, where the claimant’s eligibility is contingent on establishing whether a restriction based on ethical, moral or philosophical beliefs can be attributed to a bona fide conscientious objection. For such cases, the following factors should be considered:

1. Does the claimant contend that working under the objectionable conditions would conflict with his or her basic convictions or is the restriction based primarily on other personal reasons?

For example, a claimant, who customarily works as a cashier and snack bar attendant in motion picture theaters, is unwilling to work in "adult" theaters because his spouse objects to the type of people who patronize such businesses. Since the restriction is based on the spouse’s objections, it would not be attributed to the claimant’s conscientious objection. In contrast, if the claimant is unwilling to work in "adult" theaters because he believes the movies are pornographic and obscene and feels they should be banned, the objection might be considered conscientious in nature depending on the other factors below.

2. Is the claimant’s conduct consistent with his or her alleged beliefs? For example, A claimant, who lives near the California/Nevada border, is unwilling to work in a Nevada Casino on the grounds that he or she is opposed to gambling. The claimant admits, however, to occasionally purchasing a lottery ticket. This lack of consistency tends to cast doubt on the claimant’s alleged objection to gambling and suggests that the restriction is based on other reasons.

3. Does the claimant belong to or support any organization which advocates or opposes the principles upon which his or her restriction is based? A claimant’s affiliation with an organization which advocates the principles that are the basis for his or her objection tends to substantiate the sincerity and consistency of his or her beliefs. However, the claimant may have a sincere conscientious belief and not belong to any organization.

As with religious objections, if the claimant can establish a "sincerely held belief," expression of that belief is considered a good cause reason for restricting availability. Thus, in accordance with the Sanchez decision, the claimant will be eligible as long as he or she remains available to a substantial field of employment.