Current through Register Vol. XLI, No. 50, December 13, 2024
Section 77-3-5 - Selection Practices5.1. 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.5.2. It is an unlawful employment practice for any person to elicit or attempt to elicit any information directly or indirectly pertaining to the religion of applicants for employment. Examples of such a practice include the use of the following inquiries: 5.2.1. Requesting applicant's religious denomination, affiliation, church, parish, pastor, or religious holidays observed; representing to applicants that an employer is of a predominant or particular religious orientation.5.2.2. Inquiry asking specifically for the religious affiliation of schools attended by the applicant.5.2.3. Requirement of submission of a religious reference.5.2.4. Any inquiry into willingness to work any particular religious holiday.5.2.5. Requesting a list of all clubs, social fraternities, societies, lodges, or organizations to which the applicant belongs, other than trade, professional or service organizations.5.3. The use of pre-selection inquiries which determine an applicant's availability may be considered to violate the West Virginia Human Rights Act unless the employer can show such inquiries:5.3.1. Did not have an exclusionary effect on its employees or prospective employees needing an accommodation for religious practices; or5.3.2. Were otherwise justified by business necessity.5.4. 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, but 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 particular available position is announced to an applicant, 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 rules, 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.5.5. The Commission may infer that the need for an accommodation discriminatorily influenced a decision to reject an applicant when prior to an offer of employment the employer makes an inquiry into an applicant's availability without having a business necessity justification, and after the employer has determined the applicants 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.5.6. 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 rules apply and that it has an obligation to accommodate such employee or prospective employee unless undue hardship would result.5.7. Nothing in this regulation prohibits an applicant from voluntarily providing a potential employer with information which would aid in the employer's compliance with any statute, state or federal, or affirmative action plan.5.8. Pre-employment inquiries which are made in conformance with the instructions from, or the requirements of, an agency or agencies of the local, state or federal government in connection with the administration of a fair employment practices program will not constitute evidence of unlawful employment discrimination.