Can You Ask Applicants About (Religious) Schedule Conflicts?

The EEOC guidelines state that an employer’s use of inquiries that tend to reveal an employee’s or applicant’s religious beliefs violate Title VII, unless the employer can show there was no discriminatory effect or that the inquiries were justified by business necessity.

Therefore, employers should not ask applicants or employees whether they are available for work on a specific date or time. The guidelines suggest that an employer state the normal work hours for a job and—after making it clear to the applicant that there is no requirement to disclose religion-related absences needed during the scheduled hours—ask the applicant whether he or she is otherwise available to work those hours.

Then, after a job offer is made, but before the applicant is hired, the employer can inquire about the need for a religious accommodation (29 CFR 1605.3). Where the employee is unable to work the normal hours for the job because of religious beliefs, the employer must offer a reasonable accommodation, unless it would cause the employer an undue hardship.

What Is an Undue Hardship?

Undue hardship may be claimed by an employer in situations where accommodating an employee’s religious practices would require more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee’s religious practices denies another employee the job or shift preference guaranteed by the seniority system.

Factors to be considered in determining whether an accommodation is an undue hardship include:

• The size and nature of the business
• The type and cost of the accommodation required
• Notice of the requested accommodation

An assumption that many more people with the same religious practices as the person being accommodated may also need accommodation is not evidence of undue hardship (29 CFR 1605.2).

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Options for reasonable accommodation include 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.

May a Standard for Dress Be Set?

Sometimes an employee dresses in a manner that does not comport with the look that the employer wants to convey to the public. In order to comply with religious beliefs, a male employee may want to wear a beard or a female employee may want to cover her head.

Employers may need to accommodate the dress and grooming habits based on a religious practice or belief, unless the employer has a policy against the dress or grooming habits that is justified by a business necessity. For example, an employer is not required to accommodate long robes or skirts in an industrial plant where loose clothing may get caught in moving machinery. Similarly, an employer need not accommodate untrimmed beards or flowing hair if the business is a restaurant or hospital, and it can be proven that the employee’s practice presents a health or safety risk.

When and how to deal with religious accommodation—a perennial compliance hassle, but hardly your only one. Are all of your managers and supervisors acting according to your policies and applicable laws? How can you tell what’s really going on in your organization? There’s only one way to find out—regular audits.

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