Elizabeth A. Semler
503.243.1661 x 264
 

Employment eAlert: Job Descriptions Can Trigger Religious Discrimination Claims

March 2012

Elizabeth A. Semler
503.243.1661 x 264

The EEOC has made clear that the use of pre-hiring inquiries to determine an applicant's availability to work on specific days has an exclusionary effect on the employment opportunities of persons with certain religious practices. As a result, the use of such inquiries will be considered a violation of Title VII (which prohibits, among other things, discrimination on the basis of religion), unless an employer can show that it: (i) did not have an exclusionary effect on its employees or prospective employees needing an accommodation for the same religious practices; or (ii) was otherwise justified by business necessity.

Further, an employer may not permit an applicant's need for a religious accommodation to affect in any way its decision whether to hire the applicant unless it can demonstrate that it cannot reasonably accommodate the applicant's religious practices without undue hardship. The determination whether an accommodation creates an undue hardship is made by considering the particular factual context of each case. However, undue hardship has been established where: the accommodation diminishes efficiency in other jobs; infringes on other employees' job rights or benefits; impairs workplace safety; or causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law, and the identifiable cost of the accommodation in relation to the size and operating costs of the employer, will also be considered.

Bottom line: Employers need to carefully consider pre-hiring inquiries about availability to avoid claims of religious discrimination.

If you would like more information about religious discrimination or accommodation, or have questions about any employment law issues, please feel free to contact us.

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Employment

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