2J01 Religious Accommodation

The contractor has a duty to conduct affirmative action and ensure nondiscrimination on the basis of religion.131 As part of this duty described in 41 CFR 60-50.3, the contractor must accommodate the religious observances and practices of its employees and prospective employees unless it can demonstrate that it cannot reasonably accommodate a religious observance or practice without undue hardship on its business. In determining the extent of the contractor’s obligation to provide reasonable accommodations on religious grounds, COs must consider:

  • Business necessity;
  • Financial costs and expenses; and
  • Resulting personnel problems.

In addition, other factors that COs may consider include:

  • the type of workplace; 
  • the nature of the employee’s duties; 
  • the identifiable cost of the accommodation in relation to the size and operating costs of the employer; and 
  • the number of employees who will in fact need a particular accommodation.132

The agency follows Title VII legal principles on religious accommodations to ensure nondiscrimination on the basis of religion. In general, accommodation requests must be granted where reasonable, and may only be denied where there is an objective undue hardship. Also, the contractor has a corresponding affirmative obligation to employ individuals without regard to religion, which includes having a functional and accessible religious accommodations process as well as “reasonable internal procedures to insure that the employer's obligation to provide equal employment opportunity without regard to religion or national origin is being fully implemented.”133

COs must ask the contractor whether and how it has made accommodation to the religious observances and practices of its employees and prospective employees, including whether the contractor has denied any religious accommodation requests. If so, the CO will seek documentation and verification of the reasons for denial and ensure that they were proper. In reviewing employee files, COs must be alert for any pattern of discipline or terminations based on refusal to work on certain days based on religious observances. If the contractor reports that no requests were made, COs must review procedures available for evaluating such requests.

In assessing whether the contractor has improperly denied a religious accommodation request, COs should bear the following considerations in mind. First, whether or not an accommodation is reasonable hinges on whether the accommodation offered by the contractor actually and fully eliminates the conflict between an employment requirement and the employee’s religious belief or practice. Accommodations offered by the contractor that only partially eliminate or lessen a conflict, or that merely have the potential to eliminate it, are not reasonable unless a more complete accommodation would impose an undue hardship on the contractor. 

Second, an undue hardship can only be demonstrated by specific, concrete, clearly ascertainable impositions on the contractor’s operations. Hypothetical or speculative costs and burdens, where the harm to the contractor is indeterminate, do not constitute undue hardships. Put another way, an undue hardship should be immediately present or likely to occur, and impose actual costs on the contractor or create an actual disruption of work. An anticipated cost or burden, including one posited by multiplying an actual burden or cost created by an accommodation by the number of employees who might seek a similar accommodation, does not rise to the level of an undue hardship. Likewise, accommodation requests that do not impose actual costs on the contractor typically do not cause an undue hardship. 

Finally, whether a given accommodation would impose an undue hardship on the contractor must be assessed in light of what, if any, mitigating steps the contractor can reasonably be expected to take to lessen the cost or burden incurred as a result of the accommodation. If an employee’s proposed accommodation would pose an undue hardship, the contractor must proactively consider possible alternative accommodations.

131. Executive Order 11246, Section 202(1); 41 CFR 60-50.1

132. www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftnref144

133. 41 CFR 60-50.2.