[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1605.3]

[Page 206-207]
 
                             TITLE 29--LABOR
 
          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
PART 1605_GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION--Table of Contents
 
Sec. 1605.3  Selection practices.

    (a) Scheduling of tests or other selection 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 these guidelines apply and that it has an obligation to 
accommodate such employee or prospective employee unless undue hardship 
would result.
    (b) 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) As a result of the oral and written testimony submitted at the 
Commission's Hearings on Religious Discrimination, discussions with 
representatives of organizations interested in the issue of religious 
discrimination, and the comments received from the public on these 
Guidelines as proposed, the Commission has concluded that the use of 
pre-selection 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 unless the 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.

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

[[Page 207]]

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 these Guidelines, whether an accommodation is possible. This type of 
inquiry would provide an employer with information concerning the 
availability of most of its applicants, while deferring until after a 
position is offered the identification of the usually small number of 
applicants who require an accommodation.
    (3) The Commission will infer that the need for an accommodation 
discriminatorily influenced a decision to reject an applicant when: (i) 
prior to an offer of employment the employer makes an inquiry into an 
applicant's availability without having a business necessity 
justification; and (ii) 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.