PART 1605—GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. Source: 45 FR 72612, Oct. 31, 1980, unless otherwise noted. § 1605.1 “Religious” nature of a practice or belief. In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define 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. This standard was developed in United States Seeger, Welsh United States, 1 1 § 1605.2 Reasonable accommodation without undue hardship as required by section 701(j) of title VII of the Civil Rights Act of 1964. (a) Purpose of this section. (b) Duty to accommodate. 2 2 Trans World Airlines, Inc. Hardison, (2) Section 701(j) in conjunction with section 703(c), imposes an obligation on a labor organization to reasonably accommodate the religious practices of an employee or prospective employee, unless the labor organization demonstrates that accommodation would result in undue hardship. (3) Section 1605.2 is primarily directed to obligations of employers or labor organizations, which are the entities covered by title VII that will most often be required to make an accommodation. However, the principles of § 1605.2 also apply when an accommodation can be required of other entities covered by title VII, such as employment agencies (section 703(b)) or joint labor-management committees controlling apprecticeship or other training or retraining (section 703(d)). (See, for example, § 1605.3(a) “Scheduling of Tests or Other Selection Procedures.”) (c) Reasonable accommodation. (2) When there is more than one method of accommodation available which would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining: (i) The alternatives for accommodation considered by the employer or labor organization; and (ii) The alternatives for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to his or her employment opportunites, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities. (d) Alternatives for accommodating religious practices. (i) Voluntary Substitutes and “Swaps”. Reasonable accommodation without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. One means of substitution is the voluntary swap. In a number of cases, the securing of a substitute has been left entirely up to the individual seeking the accommodation. The Commission believes that the obligation to accommodate requires that employers and labor organizations facilitate the securing of a voluntary substitute with substantially similar qualifications. Some means of doing this which employers and labor organizations should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed. (ii) Flexible Scheduling. One means of providing reasonable accommodation for the religious practices of employees or prospective employees which employers and labor organizations should consider is the creation of a flexible work schedule for individuals requesting accommodation. The following list is an example of areas in which flexibility might be introduced: flexible arrival and departure times; floating or optional holidays; flexible work breaks; use of lunch time in exchange for early departure; staggered work hours; and permitting an employee to make up time lost due to the observance of religious practices. 3 3 (iii) Lateral Transfer and Change of Job Assignments. When an employee cannot be accommodated either as to his or her entire job or an assignment within the job, employers and labor organizations should consider whether or not it is possible to change the job assignment or give the employee a lateral transfer. (2) Payment of Dues to a Labor Organization. Some collective bargaining agreements include a provision that each employee must join the labor organization or pay the labor organization a sum equivalent to dues. When an employee's religious practices to not permit compliance with such a provision, the labor organization should accommodate the employee by not requiring the employee to join the organization and by permitting him or her to donate a sum equivalent to dues to a charitable organization. (e) Undue hardship. de minimis 4 de minimis Hardison Hardison, de minimis 4 Hardison, supra, (2) Seniority Rights. Undue hardship would also be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee's religious practices when doing so would deny another employee his or her job or shift preference guaranteed by that system. Hardison, supra, § 1605.3 Selection practices. (a) Scheduling of tests or other selection procedures. (b) Inquiries which determine an applicant's availability to work during an employer's scheduled working hours. (2) As a result of the oral and written testimony submitted at the Commission's Hearings on Religious Discrimination, discussions with representatives of organizations interested in the issue of religious discrimination, and the comments received from the public on these Guidelines as proposed, the Commission has concluded that the use of pre-selection inquiries which determine an applicant's availability has an exclusionary effect on the employment opportunities of persons with certain religious practices. The use of such inquiries will, therefore, be considered to violate title VII unless the employer can show that it: (i) Did not have an exclusionary effect on its employees or prospective employees needing an accommodation for the same religious practices; or (ii) Was otherwise justified by business necessity. Employers who believe they have a legitimate interest in knowing the availability of their applicants prior to selection must consider procedures which would serve this interest and which would have a lesser exclusionary effect on persons whose religious practices need accommodation. An example of such a procedure is for the employer to state the normal work hours for the job and, after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours. Then, after a position is offered, but before the applicant is hired, the employer can inquire into the need for a religious accommodation and determine, according to the principles of these Guidelines, whether an accommodation is possible. This type of inquiry would provide an employer with information concerning the availability of most of its applicants, while deferring until after a position is offered the identification of the usually small number of applicants who require an accommodation. (3) The Commission will infer that the need for an accommodation discriminatorily influenced a decision to reject an applicant when: (i) prior to an offer of employment the employer makes an inquiry into an applicant's availability without having a business necessity justification; and (ii) after the employer has determined the applicant's need for an accommodation, the employer rejects a qualified applicant. The burden is then on the employer to demonstrate that factors other than the need for an accommodation were the reason for rejecting the qualified applicant, or that a reasonable accommodation without undue hardship was not possible. Appendix A to §§ 1605.2 and 1605.3—Background Information In 1966, the Commission adopted guidelines on religious discrimination which stated that an employer had an obligation to accommodate the religious practices of its employees or prospective employees unless to do so would create a “serious inconvenience to the conduct of the business”. 29 CFR 1605.1(a)(2), 31 FR 3870 (1966). In 1967, the Commission revised these guidelines to state that an employer had an obligation to reasonably accommodate the religious practices of its employees or prospective employees, unless the employer could prove that to do so would create an “undue hardship”. 29 CFR 1605.1(b)(c), 32 FR 10298. In 1972, Congress amended title VII to incorporate the obligation to accommodate expressed in the Commission's 1967 Guidelines by adding section 701(j). In 1977, the United States Supreme Court issued its decision in the case of Trans World Airlines, Inc. Hardison, Hardison In 1978, the Commission conducted public hearings on religious discrimination in New York City, Milwaukee, and Los Angeles in order to respond to the concerns raised by Hardison. 5 5 The Commission found from the hearings that: (1) There is widespread confusion concerning the extent of accommodation under the Hardison (2) The religious practices of some individuals and some groups of individuals are not being accommodated. (3) Some of those practices which are not being accommodated are: —Observance of a Sabbath or religious holidays; —Need for prayer break during working hours; —Practice of following certain dietary requirements; —Practice of not working during a mourning period for a deceased relative; —Prohibition against medical examinations; —Prohibition against membership in labor and other organizations; and —Practices concerning dress and other personal grooming habits. (4) Many of the employers who testified had developed alternative employment practices which accommodate the religious practices of employees and prospective employees and which meet the employer's business needs. (5) Little evidence was submitted by employers which showed actual attempts to accommodate religious practices with resultant unfavorable consequences to the employer's business. Employers appeared to have substantial anticipatory concerns but no, or very little, actual experience with the problems they theorized would emerge by providing reasonable accommodation for religious practices. Based on these findings, the Commission is revising its Guidelines to clarify the obligation imposed by section 701(j) to accommodate the religious practices of employees and prospective employees. [45 FR 72612, Oct. 31, 1980, as amended at 74 FR 3430, Jan. 21, 2009]