As the Equal Opportunity (EO) professional for an agency or organization charged with administering federally-funded programs and activities (also known as a “recipient”), you should have written policies and procedures for handling requests for religious accommodation. In this paper, we explore some basic concepts related to religious accommodation using the Workforce Investment Act of 1998 (WIA) as the context for guidance offered.

Some examples of WIA-funded programs and activities are found at One Stop Career Centers offering unemployment insurance benefits, employment referral services, and training. In addition, most Job Corps Centers offer WIA-funded educational programs and activities designed to get folks educated, skilled, and employed.

For WIA-funded programs and activities, one prohibited basis of discrimination is “religion”. (For a discussion of “basis”, see prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important”). And, with this prohibition comes an obligation to provide reasonable, religious-based accommodation when requested, if no “undue hardship” is present.

“Religious belief or practice” defined.

Initially, it is helpful to have a common understanding of how the phrase, “religious belief or practice”, is defined. Because the WIA and its implementing regulations do not define “religious belief or practice”, it is useful for us to look at how this phrase is defined under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits religion-based discrimination in the workplace. Here, we find that a “religious belief or practice” may represent mainstream religious views, or it may be less common, less understood, and less well-known. And, the concept of “religious belief or practice” includes persons who ascribe to no religious belief or practice at all.

Some examples of “religious belief or practice” under Title VII include, but are not limited to:

● Agnostic
● Atheist
● Buddhist
● Christian
● Hindu
● Jewish
● Kemetic
● Muslim
● Native American spiritual beliefs
● Sikh
● Wicca
● and countless others.

A common thread defining any “religious belief or practice” is that it reflects a person’s views of life, purpose, and death. On the other hand, social, political, and economic philosophies as well as personal preferences do not constitute “religious beliefs or practices” protected by federal civil rights laws.

The “religious belief or practice” must be bona fide.

Religious-based accommodation is premised on the fact that the asserted “religious belief or practice” is bona fide. Said differently, it is “sincerely held” by the requestor. Generally, this requirement is met without difficulty. However, if the requestor behaves in a manner that is markedly inconsistent with the professed “religious belief or practice”, then you may determine that the belief or practice is not bona fide or “sincerely held” by the requestor. This, in turn, means that there is no obligation to provide accommodation.

Essential eligibility requirements must be met.

Before entertaining a request for religious accommodation of a federally-funded program or activity, the requester must meet its “essential eligibility requirements”. If a person does not meet the “essential eligibility requirements” for the program or activity, then there is no obligation to provide accommodation.

Common religious-based accommodation requests.

In federally-funded programs and activities, some common religious-based accommodation requests include:

● Changes in scheduling of programs and activities;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

In the workplace, religious-based accommodation requests may take similar forms of:

● Changes in scheduling of work shifts;
● Modification of testing and selection procedures;
● Modification of dress and/or grooming requirements; and
● Permitting forms of religious expression.

Generally, a religious-based accommodation request is made to address conflicts between a federally-funded program and activity and a person’s religious belief or practice. For example, your One Stop Center receives a request that orientations for the Center’s programs and activities be scheduled any day of the week except Friday because Friday is considered a “holy day” by the requestor. This is an example of a religious-based accommodation request.

Communication is a must.

If a person seeks accommodation based on his/her religious belief or practice, then the accommodation request must be made known to the recipient offering federally-funded programs and activities (such as the One Stop Career Center or Job Corps Center). Magic words are not required, but the requestor must convey enough information for the recipient to understand that accommodation is sought pursuant to the requestor’s religious beliefs or practices. A recipient cannot be held liable for failure to provide accommodation if it was unaware of the need in the first place.

Information-sharing between the requestor and the recipient’s EO professional is critical as determinations of accommodation are made on a case-by-case basis after consideration of the particular facts.

Avoid discriminatory consideration of requests.

If a person meets the essential eligibility requirements for a federally-funded program or activity, and the person requests accommodation based on a bona fide religious belief or practice, then the EO professional is obliged to avoid consideration of discriminatory criteria. Examples of discriminatory criteria are as follows:

● “The person looks like a terrorist”;
● “The person’s beliefs are illogical, inconceivable, or
incorrect”;
● “I disagree with the person’s beliefs”;
● “The person’s name is associated with a particular religion”;
● “The person’s name is associated with terrorism”;
● “The person’s religious belief or practice is offensive”;
● “The person’s religious belief or practice is immoral”;
● “I am uncomfortable with the religious belief or practice”; or
● “The person’s religious belief or practice is in the minority.”

It bears repeating that it is discriminatory to employ any of the foregoing criteria, or similar criteria, in considering an accommodation request. Sincerely held religious beliefs and practices are intensely personal and they must be accepted “as is” for purposes of addressing a religious accommodation request under federal civil rights laws.

“Undue hardship” defined.

A recipient offering federally-funded programs and activities is obliged to provide reasonable religious-based accommodation unless it can demonstrate “undue hardship”. For example, the regulations implementing WIA at 29 C.F.R. § 37.4 define “undue hardship” as follows:

For purposes of religious accommodation only, “undue hardship” means any additional, unusual costs, other than de minimis costs, that a particular accommodation would impose upon a recipient. See Trans World Airlines, Inc.v. Hardison, 432 U.S. 63, 81, 84 (1977).

It is Respondent’s burden to demonstrate “undue hardship”.

“Undue hardship” is not established.

Asserting speculative, or showing only de minimus, costs associated with providing accommodation does not give rise to a finding of “undue hardship”. And, “undue hardship” is not established by a recipient’s mere assertion that providing accommodation for one person will lead to an incoming tide of other requests.

“Undue hardship”: Factors to consider.

As we noted earlier, “undue hardship” must be determined on a case-by-case basis after consideration of all the facts. The following factors may be relevant and are properly considered:

● Costs associated with providing the accommodation are identifiable and more than “de minimus” in
relation to the Respondent’s size and operating costs;
● Providing the requested accommodation would diminish the efficiency of Respondent’s federally-
funded programs and activities;
● Safety would be impaired by allowing the accommodation;
● The requested accommodation would conflict with another law; or
● In the employment context, the requested accommodation violates of the terms of a collective
bargaining agreement, or violates seniority rights of other employees.

In assessing whether a requested accommodation would conflict with another law, it is important to keep in mind that federally-funded programs and activities are paid by taxpayers of all races, colors, national origins, genders, disabilities, and religions. These funds, in turn, are used to provide aid, benefits, services, and training to any member of the public meeting certain essential eligibility requirements. Attached to this federal funding are obligations imposed on the recipient to ensure nondiscrimination on a variety of bases, including religion, sex, race, national origin, color, disability, and age among others.

So, let’s assume that you are the EO Officer for a Job Corps Center, which provides educational programs and activities. Your Center is located in an area that is largely comprised of persons of a particular religion requiring separation of men and women in educational programs and activities. You receive a request for accommodation by persons of this religious belief asking that you provide separate classes for men and women at your Center. What should you do?

We start with the law. The regulations implementing WIA bar discrimination on certain “prohibited grounds” as follows:

(a) For the purposes of this section, “prohibited ground” means race, color, religion, sex, national origin, age, political affiliation or belief, and for beneficiaries only, citizenship or participation in any WIA Title I—financially assisted program or activity.

29 C.F.R. § 37.6(a). And, the regulations further provide that offering segregated or separate programs and activities is a form of discrimination:

(b) A recipient must not, directly or through contractual, licensing, or other arrangements, on a prohibited ground:
. . .
(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any aid, benefits, services, or training under a WIA Title I—funded program or activity; . . ..

29 C.F.R. § 37.6(b)(3).

In our example, the requested accommodation (segregation of men and women in educational programs) would lead your Center to engage in gender-based discrimination in violation of federal law. As previously noted, the law prohibits “segregation or separate treatment” on any “prohibited ground”, which includes sex. Keep in mind that the same would hold true if you received a religious-based accommodation request seeking segregation based on race, color, national origin, age, or the like. It is not reasonable to discriminate against participants on one of these prohibited bases in order to accommodate a religious belief or practice.

In the end, religious-based accommodation requests are fact-intensive and must be handled on a case-by-case basis. To the extent that “undue hardship” is not present, you are obliged under federal law to provide reasonable religious-based accommodation, if requested, to persons who meet the essential eligibility requirements for the program or activity. And, you must accept the requestor’s religious belief or practice “as is”. For complicated accommodation requests, including any requests that may conflict with other federal civil rights laws, you should consult with the EO leadership of your state or territory for guidance, or with the civil rights office of your federal funding agency.

Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com. The opinions expressed are those of Ms. Foster. In handling a religious-based accommodation request, you should consult the EO leadership of your state or territory, or the civil rights office of your federal funding agency.