COs must include assessment of the contractor’s compliance with the Guidelines on Discrimination Because of Religion or National Origin as a part of the on-site review.130 Although the Executive Order AAP does not require that the contractor include a reference to these guidelines, the contractor must still comply with them. COs must examine the contractor’s policy statement to ensure that it references the contractor’s obligation to provide EEO without regard to religion and national origin. COs must also interview contractor officials and employees regarding implementation of the policy, including the provision of accommodation for religious observances and practices. COs include this information obtained during the on-site review in the SCER in Part C.
130. 41 CFR Part 60-50.
A contractor must review its employment practices to determine whether individuals receive fair consideration for job opportunities without regard to religion or national origin. COs must ask the contractor whether it conducted a review of its employment practices for this purpose and, if so, when, how and whether it documented the review. If the contractor undertook a review, the CO must verify the results and the sufficiency of any corrective actions that the contractor implemented. In making this assessment, the CO will keep in mind that the scope of the contractor’s efforts depends on a review of all circumstances, including the nature and extent of any problem areas, as well as the size and resources of the contractor. COs must take into consideration that contractors are not required to collect data on applicants’ and employees’ religious affiliation or national origin. Therefore, a contractor’s self-analysis will not use employment records to identify employees’ religious affiliations or national origins. If the contractor did not conduct a review, the contractor must take corrective action.
COs must verify that the contractor communicated the nondiscrimination policy to contractor officials, human resources personnel, employees and applicants, and that procedures implementing the policy are in place. A CO will also verify that the contractor has participated in recruitment and outreach efforts. A CO will review employment policies regarding nondiscrimination based on religion and national origin, and the provision of religious accommodations. During interviews with contractor officials, employees and applicants, a CO will ask about requests for religious accommodations and how the contractor responded to these requests. COs must obtain documentation regarding recruitment and outreach, and other affirmative action efforts.
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
133. 41 CFR 60-50.2.
While conducting interviews and review of records, COs may obtain information regarding potential harassment or discrimination based on religion or national origin, or both. Like harassment based on race, sex, sexual orientation, gender identity, disability, or veteran status, harassment based on religion or national origin may take a number of forms. Examples include name calling, negative treatment, or derogatory speech directed at individuals of a specific religion or national origin. If a CO obtains information about potential harassment or discrimination, the CO must investigate further to determine whether the:
- Discrimination occurred in the past or is ongoing;
- Contractor knew or should have known of the discrimination;
- Contractor has internal discrimination and harassment complaint procedures in place;
- Contractor’s internal discrimination and harassment complaint procedures are known to the employees; and
- Contractor has done anything to address the problem.
Additional information regarding harassment and hostile environment on the bases of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status is discussed in Chapter 6, Complaint Investigation.
Additionally, if the CO finds indicators of disparate treatment or disparate impact,134 or both, the CO must fully investigate the issue. The CO must obtain copies of any documents reflecting these concerns or indicating how the contractor dealt with the concern. The CO must also interview people knowledgeable about the matter. If the investigation identifies issues specific to religious or national origin discrimination that the Guidelines on Discrimination Because of Religion or National Origin do not address, the CO must follow Title VII principles in determining whether a violation may have occurred.
134. Definitions for these terms are included in the Key Words and Phrases section of the Manual.
As part of the on-site review, COs may identify organizations representing the interests of various nationalities and religious groups located in the labor area serving the contractor’s facility. COs may find it useful to contact such groups for information about possible employment problems experienced by their members who have applied for employment with the contractor.