Federal Laws and Regulations
Regarding
Religious Liberty
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The FIRST Amendment of the Constitution is
Article I in the Bill of Rights
Article I.
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
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Guidelines on
Discrimination Because of Religion
Effective June 15, 1966;
amended July 13,1967; November 1,1980
Title 29 CFR (Code of Federal Regulations )
(PART 1605) Section Table of Contents
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 offered 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 offered 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
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. (1) Employees and prospective employees most
frequently 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
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 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
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.
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Created March 26, 2006 |