Section 348-3-14 - RELIGIOUS DISCRIMINATIONIn addition to any other unlawful practice on the basis of religion prohibited by this chapter or the Act:
1."Religious" nature of a practice or beliefIn most cases, whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970). The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase "religious practice" as used in this chapter includes both religious observances and practices, as stated in §2(18) of this chapter.
2.Reasonable accommodation without undue hardshipA.Duty to Accommodate. It is unlawful employment discrimination for an employer, employment agency or labor organization (hereinafter collectively referred to as "employer" in this section) to fail to reasonably accommodate the religious practices of an employee or member or prospective employee or member, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.B.Reasonable accommodation(1) After an employee or prospective employee or member notifies the employer of his or her need for a religious accommodation, the employer has an obligation to reasonably accommodate the individual's religious practices. A refusal to accommodate is justified only when an employer can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. A mere assumption that many more people, with the same religious practices as the person being accommodated may also need accommodation is not evidence of undue hardship.(2) When there is more than one method of accommodation available that would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining:(a) The alternatives for accommodation considered by the employer; and(b) The alternatives for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to their employment or union opportunities, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer must offer the alternative which least disadvantages the individual with respect to their employment or union opportunities.C.Alternatives for accommodating religious practices(1) Employees or members and prospective employees or members most frequently request an accommodation because their religious practices conflict with their work schedules. The following subsections are some means of accommodating the conflict between work schedules and religious practices, which the Commission believes that employers should consider as part of the obligation to accommodate and which the Commission will consider in investigating a charge. These are not intended to be all-inclusive. There are often other alternatives that would reasonably accommodate an individual's religious practices when they conflict with a work schedule. There are also employment practices besides work scheduling that may conflict with religious practices and cause an individual to request an accommodation. The principles expressed in this chapter apply as well to such requests for accommodation.(a)Voluntary substitutes and "swaps"Reasonable accommodation without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. One means of substitution is the voluntary swap. In a number of cases, the securing of a substitute has been left entirely up to the individual seeking the accommodation. The Commission believes that the obligation to accommodate requires that employers facilitate the securing of a voluntary substitute with substantially similar qualifications. Some means of doing this that employers should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed. In some instances, the employer may have the obligation to attempt to secure a substitute for the employee.
(b)Flexible schedulingOne means of providing reasonable accommodation for the religious practices of employees or members or prospective employees or members that employers should consider is the creation of a flexible work schedule for individuals requesting accommodation.
The following list is an example of areas in which flexibility might be introduced: flexible arrival and departure times; floating or optional holidays; flexible work breaks; use of lunch time in exchange for early departure; staggered work hours; and permitting an employee to make up time lost due to the observance of religious practices.
(c)Lateral transfer and change of job assignmentsWhen an employee or member cannot be accommodated either as to their entire job or an assignment within the job, employers should consider whether or not it is possible to change the job assignment or give the employee or member a lateral transfer.
(2)Payment of dues to a labor organizationSome collective bargaining agreements include a provision that each employee must join the labor organization or pay the labor organization a sum equivalent to dues. When an employee's religious practices do not permit compliance with such a provision, the labor organization should accommodate the employee by not requiring the employee to join the organization and by permitting them to donate a sum equivalent to dues to a charitable organization.
D.Undue hardship(1)Cost. An employer may assert undue hardship to justify a refusal to accommodate an employee's or member'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". See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). 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; this determination is made considering the number of individuals actually requesting accommodation and not generalized assumptions about others who may have similar religious beliefs or practices. In general, the Commission interprets this phrase as it was used in the Hardison decision to mean that costs similar to the regular payment of premium wages of substitutes, which was at issue in Hardison, would constitute undue hardship. However, in most circumstances 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. The term undue hardship also includes non-economic costs.
(2)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. Hardison, supra, 432 U.S. at 80. Arrangements for voluntary substitutes and swaps (see division C(1)(a) of this subsection) do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system. Nothing in the Act or this chapter precludes an employer from including arrangements for voluntary substitutes and swaps as part of a collective bargaining agreement.3.Selection practicesA.Scheduling of tests or other selection procedures. When a test or other selection procedure is scheduled at a time when an employee or member or prospective employee or member cannot attend because of their religious practices, the user of the test should be aware that the principles enunciated in this chapter apply and that it has an obligation to accommodate such employee or member or prospective employee or member unless undue hardship would result.B.Inquiries that determine an applicant's availability to work during an employer's scheduled working hours(1) The duty to accommodate pertains to prospective employees or members as well as current employees or members. Consequently, an employer may not refuse to hire an applicant based on their known need for a reasonable accommodation for their religious practicesunless it can demonstrate that it cannot reasonably accommodate the applicant's religious practices without undue hardship.(2) Inquiries into an applicant's availability on certain days or during certain hours may have an adverse impact on individuals who require a reasonable accommodation for their religious practices. Rather than inquire into the applicant's specific availability, employers should provide their regular hours and/or the anticipated schedule for the position, and ask the applicant whether they can work the anticipated schedule with or without a reasonable accommodation.94-348 C.M.R. ch. 3, § 14