Do your company's hiring practices comply with federal regulations regarding religious discrimination? Title VII of the Civil Rights Act of 1964 (Title VII) obligates employers to reasonably accommodate the religious practices of employees and prospective employees, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.

Two Common Trouble Areas

Employers typically run afoul of the rules in two ways. First, an interview, test or other selection procedure might be scheduled at a time when a prospective employee cannot attend because of his or her religious practices. Be aware that employers are obligated to accommodate such an applicant unless undue hardship to their business would result. Very few circumstances would pass this undue hardship test. The easy solution here is to maintain scheduling flexibility in hiring practices.

Second, during the interview an employer might inquire about an applicant’s availability to work during the employer’s scheduled working hours. Most of us would probably regard this as a perfectly reasonable question. But if in response an applicant expresses a need for a religious accommodation, then the employer may be subjected to a claim of religious discrimination if the applicant is not offered a job. That is, an issue may arise as to whether the employer permitted the applicant’s need for a religious accommodation to in any way affect its hiring decision.

The Equal Employment Opportunity Commission (EEOC) views such pre-selection inquiries as having a direct and exclusionary effect on the employment opportunities of persons with certain religious practices. Such inquiries will be considered to violate Title VII unless the employer can show that it (1) Did not have an exclusionary effect on its employees or prospective employees needing an accommodation for the same religious practices; or (2) Was otherwise justified by business necessity.

The EEOC rather directly states that it will infer that the need for an accommodation unlawfully influenced a decision to reject an applicant when (1) prior to an employment offer the employer inquires into an applicant’s availability without having a business necessity justification, and (2) after the employer determines the applicant’s need for an accommodation, the employer rejects a qualified applicant. This inference places the burden on the employer to demonstrate that factors other than the need for an accommodation were the reason for the rejection, or that a reasonable accommodation without undue hardship was not possible. Employers don't want to be in this position. It's like a baseball player coming to bat with two strikes before he even enters the batter's box. How should a prospective employer proceed?

Fortunately, the EEOC suggests a method for navigating through this minefield when an employer believes it has a legitimate interest in knowing the availability of its applicants prior to selection:

1. During an interview state the normal work hours for the job.

2. 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 scheduled work hours, ask whether he or she is otherwise available to work those hours.

3. 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 EEOC guidelines, whether an accommodation is possible.

This procedure provides information concerning the availability of most applicants, while deferring until after a position is offered the identification of the usually small number of applicants who require an accommodation.

Recruiters will benefit from the establishment of hiring procedures which anticipate possible discrimination issues and provide avenues for operating within the law. Sound procedures and well-trained recruiters go a long way toward keeping the EEOC away from your company's door.