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.