Subchapter 7 (Religious Discrimination)
RELIGIOUS DISCRIMINATION
§12-46-151 General policies.
Chapter 378, HRS, prohibits any employer or other covered entity from
discriminating in employment because of a person's religion. This subchapter
serves as a standard for determining whether employment policies concerning
an employee's religious belief conform with the basic purposes of chapter
378, HRS. The commission shall review each case on an individual basis
in an effort to seek an equitable application of this subchapter to
the variety of situations which arise due to the varied religious practices
of the people of this State. [Eff 12/31/90] (Auth: HRS §§368-3, 37-8)
(Imp: HRS §§378-3, 378-8)
§12-46-152 Pre-employment practices.
(a) It is a violation of chapter 378, HRS, for an employer or other
covered entity to:
(1) Ask about an applicant's religious affiliation;
(2) Ask if an applicant attends religious services or a house of worship;
or
(3) Ask an applicant any questions that might indicate or identify
that person's religious denomination or practices.
(b) An employer shall justify by business necessity, inquiries concerning
availability. Employers who have a legitimate interest in knowing the
availability of their applicants prior to selection, shall consider
procedures which would serve this interest without excluding persons
whose religious practices need accommodation. For example, an employer
may ask: "Apart from absences for religious observances, will you be
available for work at the following times?" After a position is offered,
the employer may inquire into the need for a religious accommodation,
if any, and determine whether an accommodation is possible in accordance
with this subchapter.
(c) 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 employer or other covered entity shall
accommodate the employee or prospective employee unless undue hardship
would result. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3,
378-2)
§12-46-153 Employee selection.
(a) An employer shall not permit an applicant's religion or the need
for religious accommodation to affect in any way its decision to hire
the applicant, unless the employer can demonstrate that it cannot reasonably
accommodate the applicant's religious practices without undue hardship.
(b) It shall be prima facie evidence that the need for religious accommodation
influenced a decision to reject an applicant when:
(1) Prior to selection, the employer elicits information which would
determine an applicant's need for a religious accommodation;
(2) This procedure is not justified by business necessity; and
(3) The employer rejects a qualified applicant after the employer
has determined the applicant's need for accommodation.
The burden is then on the employer to demonstrate that factors other
than need for an accommodation were the reasons for rejecting the qualified
applicant, or that reasonable accommodation without undue hardship
was not possible. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS
§§368-3, 378-2)
§12-46-154 Reasonable accommodation.
(a) After an employee or prospective employee notifies the employer
or other covered entity of his or her need for a religious accommodation,
the employer or other covered entity shall reasonably accommodate the
individual's religious practices. A refusal to accommodate is justified
only when an employer or other covered entity can demonstrate that
an undue hardship would 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.
(b) When there is more than one method of accommodation available
which would not cause undue hardship, the commission will determine
whether the accommodation offered is reasonable by examining:
(1) The alternatives for accommodation considered by the employer
or other covered entity; and
(2) The alternatives for accommodation, if any, actually offered to
the individual requiring accommodation. [Eff 12/31/90] Auth: HRS §§368-3,
378-8) (Imp: HRS §§368-3, 378-2)
§12-46-155 Alternatives for accommodating
religious practices. Employees and prospective employees
most frequently request an accommodation because their religious
practices conflict with their work schedules or work assignments.
The following alternatives are ways of accommodating the conflict
between work schedules and religious practices which the commission
believes the employers should consider as part of their obligation
to accommodate. These suggestions are not meant to be all-inclusive,
as there are other alternatives which may reasonably accommodate
an individual's religious practices. However, some alternatives for
accommodating an individual's religious practices could, to varying
degrees, disadvantage the individual in terms of wages, desirability
of position, or career opportunities. The obligation to provide equal
employment opportunity to the maximum extent possible, irrespective
of religious beliefs, requires that the employer or other covered
entity offer the alternative which least disadvantages the individual
requesting the accommodation and does not cause undue hardship on
the employer.
Some examples of alternatives for accommodating religious practices
are:
(1) Voluntary substitutes:
(A) Reasonable accommodation without undue hardship is possible where
a voluntary substitute with substantially similar qualifications is
available.
(B) The obligation to accommodate requires that employers do everything
possible to facilitate the securing of a voluntary substitute with
substantially similar qualifications.
(C) Some means of doing this which would not involve substantial costs
are to:
(i) Allow the individual seeking the accommodation to secure a substitute
from co-employees;
(ii) Publicize policies regarding accommodation and voluntary substitution;
(iii)Promote an atmosphere in which such substitutions are favorably
regarded; or
(iv) Provide a central file, bulletin board, or other means for matching
voluntary substitutes with positions for which substitutes are needed.
(2) Flexible scheduling:
(A) The creating of flexible work schedule is one means of providing
reasonable accommodation for the religious practices of employees or
prospective employees.
(B) The following list is an example of areas in which flexibility
might be introduced:
(i) Flexible arrival and departure times;
(ii) Floating or optional holidays;
(iii)Flexible work breaks;
(iv) Use of lunch time in exchange for early departure;
(v) Staggered work hours; or
(vi) Permitting an employee to make up lost time due to the observance
of a religious practice. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8)
(Imp: HRS §§368-3, 378-2)
§12-46-156 Payment of dues to labor
organizations. Some 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 shall accommodate the employee by not requiring
the employee to join the organization and by permitting the employee
to donate a sum equivalent to dues to a nonreligious, nonlabor related
charitable organization exempt from taxation under section 501 of
the Federal Internal Revenue Code. [Eff 12/31/90] (Auth: HRS §§368-3,
378-8) (Imp: HRS §§368-3, 378-2)
§12-46-157 Undue hardship.
(a) The employer or other covered entity has the burden of proving
that an undue hardship renders unreasonable the required accommodations
to the religious needs of the individual.
(b) An employer may assert undue hardship to justify a refusal to
accommodate an employee's need to be absent from his or her scheduled
duty hours if the employer can demonstrate that the accommodation would
require more than minimum cost. What constitutes minimum cost shall
be determined 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. For example, costs,
such as regular payment of premium wages for substitutes, would constitute
undue hardship; however, 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 of providing a reasonable accommodation.
Generally, the payment of administrative costs necessary for providing
the accommodation will not constitute more than a minimum of cost.
Administrative costs, for example, include those costs involved in
rearranging schedules and recording substitutions for payroll purposes.
(c) 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 and when doing so would deny another employee a
job or shift preference guaranteed by that system. Arrangements for
voluntary substitutes and swaps do not constitute undue hardship to
the extent the arrangements do not violate a bona fide seniority system.
Nothing in chapter 378, HRS, or this subchapter precludes an employer
and a union from including arrangements for voluntary substitutes and
swaps as part of a collective bargaining agreement. [Eff 12/31/90]
(Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
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