GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION.---
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(effective June 15, 1966; amended July 13,1967; November 1,1980)
 
 
(PART 1605)
 
Section                           Table of Contents
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1605.1    "Religious" nature of a practice or belief.............
1605.2     Reasonable accommodation without undue hardship as
           required by Section 701(J) (paragraph 950) of Title VII
           of the Civil Rights Act of 1964 ......................
1605.3     Selection Practices...................................
 
Appendix A to Sections 1605.2 and 1605.3 --- Background Information
 
 
Sec. 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
VS. SEEGER, 380 U.S. 163 (1965) and WELSH VS. UNITED STATES, 398 U.S. 333
(1970). The Commission has consistently applied this standard in its
decisions. The fact that no religious group espouses such beliefs or the
fact that the religious group to which the individual professes to belong
may not accept such belief will not determine whether the belief is a
religious belief of the employee or prospective employee. The phrase
"religious practice" as used in these Guidelines includes both religious
observances and practices, as stated in Section 701(j) (paragraph 9500,
42 U.S.C. 2000e(j).
 
Sec. 1605.2 Reasonable Accommodation without Undue Hardship as Required
by Section 701(j) (paragraph 9500 of Title VII of the Civil Rights Act of
1964. --- (a) PURPOSE OF THIS SECTION.
 
    This Section clarifies the obligation imposed by Title VII of the
Civil Rights Act of 1964, as amended, (sections 701 (j) (paragraph 950),
703 (paragraph 954) 717, (paragraph 982)) to accommodate the religious
practices of employees and prospective employees. This section does not
address other obligations under Title VII not to discriminate on grounds
of religion, nor other provisions of Title VII. This section is not
intended to limit any additional obligations to accommodate religious
practices which may exist pursuant to constitutional, or other statutory
provisions; neither is it intended to provide guidance for statutes which
require accommodation on bases other than religion such as Sec. 503 of
the Rehabilitation Act of 1973 (paragraph 999.6C). The legal principles
which have been developed with respect to discrimination prohibited by
Title VII on the bases of race, color, sex, and national origin also
apply to religious discrimination in all circumstances other than where
an accommodation is required.
 
            (b)  DUTY TO ACCOMMODATE.
            (1)  Section 701(j) (paragraph 950) makes it an unlawful
unemployment practice under Sec. 703(a) (1) (paragraph 954) for an
employer to fail to reasonably accommodate the religious practices of an
employee or prospective, unless the employer demonstrates that
accommodation would result in undue hardship on the conduct of its
business.
            (2)  Section 701(j) (paragraph 954) in conjunction with Sec.
703(c), imposes an obligation 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 Section 1605.2 also apply when an accommodation can be
required of other entities covered by Title VII, such as employment
agencies (Sec. 703(b) (paragraph 954) or joint labor-management
committees controlling apprenticeship or other training or retraining
(Sec. 703(d) (paragraph 954)).
 
            (c)  REASONABLE ACCOMMODATION.
            (1)  After an employee or prospective employee notifies the
employer or labor organization of his or her need for a religious
accommodation, the employer or labor organization has an obligation to
reasonably accommodate the individual's religious practices. A refusal to
accommodate is justified only when an employer or labor organization can
demonstrate that an undue hardship would in fact result from each
available alternative method of accommodation. A mere 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.
 
             (2) When there is more than one method of accommodation
available which would not cause undue hardship, the Commission will
determine whether the accommodation offerred is reasonable by examining:
             (i) The alternatives for accommodation considered by the
employer or labor organization; and
             (ii) The alternative for accommodation, if any, actually
offerred to the individual requiring accommodation. Some alternatives for
accommodating religious practices might disadvantage the individual with
respect to his or her employment opportunities, such as compensation,
terms, conditions, or privilieges 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.
 
            (1) Employees and prospective employees most frquently
request an accommodation because their religious practices conflict with
their work schedules. The following subsections are some means of
accommodating the conflict between work schedules and religious practices
which the Commission believes that employers and labor organizations
should consider as part of the obligation to accommodate and which the
Commission will consider in investigating a charge. These are not
intended to be all-inclusive. there are often other alternatives which
would reasonably accommodate an individuals religious practices when they
conflict with a work schedule. There are also employment practices
besides work scheduling which may conflict with religious practices and
cause an individual to request an accommodation.
 
            (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 qualififcations. 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 lunchtime in
exchange for early departure; staggered work hours; and permitting an
employee to make up time lost due to the observance of religious
practices.
 
            (ii) 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.
 
APPENDIX
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1. There is widespread confusion concerning the extent of accommodation
under the HARDISON decision.
 
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.