Appendix A to §§ 1605.2 and 1605.3 - Background Information
29:4.1.4.1.6.0.21.4.6 : Appendix A
Appendix A to §§ 1605.2 and 1605.3 - Background Information
In 1966, the Commission adopted guidelines on religious
discrimination which stated that an employer had an obligation to
accommodate the religious practices of its employees or prospective
employees unless to do so would create a “serious inconvenience to
the conduct of the business”. 29 CFR 1605.1(a)(2), 31 FR 3870
(1966).
In 1967, the Commission revised these guidelines to state that
an employer had an obligation to reasonably accommodate the
religious practices of its employees or prospective employees,
unless the employer could prove that to do so would create an
“undue hardship”. 29 CFR 1605.1(b)(c), 32 FR 10298.
In 1972, Congress amended title VII to incorporate the
obligation to accommodate expressed in the Commission's 1967
Guidelines by adding section 701(j).
In 1977, the United States Supreme Court issued its decision in
the case of Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977). Hardison was brought under section
703(a)(1) because it involved facts occurring before the enactment
of section 701(j). The Court applied the Commission's 1967
Guidelines, but indicated that the result would be the same under
section 701(j). It stated that Trans World Airlines had made
reasonable efforts to accommodate the religious needs of its
employee, Hardison. The Court held that to require Trans World
Airlines to make further attempts at accommodations - by
unilaterally violating a seniority provision of the collective
bargaining agreement, paying premium wages on a regular basis to
another employee to replace Hardison, or creating a serious
shortage of necessary employees in another department in order to
replace Hardison - would create an undue hardship on the conduct of
Trans World Airlines' business, and would therefore, exceed the
duty to accommodate Hardison.
In 1978, the Commission conducted public hearings on religious
discrimination in New York City, Milwaukee, and Los Angeles in
order to respond to the concerns raised by Hardison.
Approximately 150 witnesses testified or submitted written
statements. 5 The witnesses included employers, employees,
representatives of religious and labor organizations and
representatives of Federal, State and local governments.
5 The transcript of the Commission's Hearings on Religious
Discrimination can be examined by the public at: The Equal
Employment Opportunity Commission, 131 M Street, NE., Washington,
DC 20507.
The Commission found from the hearings that:
(1) There is widespread confusion concerning the extent of
accommodation under the Hardison decision.
(2) The religious practices of some individuals and some groups
of individuals are not being accommodated.
(3) Some of those practices which are not being accommodated
are:
- Observance of a Sabbath or religious holidays;
- Need for prayer break during working hours;
- Practice of following certain dietary requirements;
- Practice of not working during a mourning period for a
deceased relative;
- Prohibition against medical examinations;
- Prohibition against membership in labor and other
organizations; and
- Practices concerning dress and other personal grooming
habits.
(4) Many of the employers who testified had developed
alternative employment practices which accommodate the religious
practices of employees and prospective employees and which meet the
employer's business needs.
(5) Little evidence was submitted by employers which showed
actual attempts to accommodate religious practices with resultant
unfavorable consequences to the employer's business. Employers
appeared to have substantial anticipatory concerns but no, or very
little, actual experience with the problems they theorized would
emerge by providing reasonable accommodation for religious
practices.
Based on these findings, the Commission is revising its
Guidelines to clarify the obligation imposed by section 701(j) to
accommodate the religious practices of employees and prospective
employees.
[45 FR 72612, Oct. 31, 1980, as amended at 74 FR 3430, Jan. 21,
2009]