SECTION 335:15-5-4. Undue hardship on employer for religious accommodation

(a)   "De minimis cost." An employer may assert undue hardship to justify a refusal to accommodate an employee's need to be absent from his or her scheduled duty hours if the employer can demonstrate that the accommodation would require "more than a de minimis cost". The Commission will determine what constitutes "more than a de minimis cost" with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation. In general, the Commission interprets this phrase as it was used in the Hardison decision to mean the costs similar to the regular payment of premium wages of substitutes, which was at issue in Hardison, would constitute undue hardship. However, the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation. Further, the Commission will presume that generally, the payment of administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost. Administrative costs, for example, include those costs involved in rearranging schedules and recording substitutions for payroll purposes.

(b)   Seniority rights. Undue hardship would also be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee's religious practices when doing so would deny another employee his or her job or shift preference guaranteed by that system. Arrangements for voluntary substitutes and swaps do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system. Nothing in the Statute or this Subchapter precludes an employer and a union from including arrangements for voluntary substitutes and swaps as part of a collective bargaining agreement.

(c)   Scheduling of tests or other selections procedures. When a test or other selection procedure is scheduled at a time when an employee or prospective employee cannot attend because of his or her religious practices, the user of the test should be aware that the principles enunciated in this Subchapter apply and that it has an obligation to accommodate such employee or prospective employee unless undue hardship would result.

(d)   Inquiries which determine an applicant's availability to work during an employer's scheduled working hours.

(1)   The duty to accommodate pertains to prospective employees as well as current employees. Consequently, 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.

(2)   The Commission has concluded that the use of preselection inquiries which determine an applicant's availability has an exclusionary effect on the employment opportunities of persons with certain religious practices. The use of such inquiries will, therefore, be considered to violate Title VII of the Civil Rights Act of 1964 unless the employer can show that it:

(A)   Did not have an exclusionary effect on its employees or prospective employees needing an accommodation for the same religious practices; or

(B)   Was otherwise justified by business necessity.

(3)   Employers who believe they have a legitimate interest in knowing the availability of their applicants prior to selection must consider procedures which would serve this interest and which would have a lesser exclusionary effect on persons whose religious practices need accommodation. An example of such a procedure is for the employer to state the normal work hours for the job and, 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 the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours. Then, 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 this Subchapter, whether an accommodation is possible. This type of inquiry would provide an employer with information concerning the deferring until after a position is offered the identification of the usually small number of applicants who require an accommodation.

(4)   The Commission will infer that the need for accommodation discriminatorily influenced a decision to reject an applicant when:

(A)   prior to an offer of employment the employer makes an inquiry into an applicant's availability without having a business necessity justification; and

(B)   after the employer has determined the applicant's need for an accommodation, the employer rejects a qualified applicant. The burden is then on the employer to demonstrate that factors other than the need for an accommodation were the reason for rejecting the qualified applicant, or that a reasonable accommodation without undue hardship was not possible.