Code of Maine Rules › 94 - INDEPENDENT AGENCIES › 348 - MAINE HUMAN RIGHTS COMMISSION › Chapter 3 - EMPLOYMENT REGULATIONS of the MAINE HUMAN RIGHTS COMMISSION › Section 348-3-14 - RELIGIOUS DISCRIMINATION

Current through 2024-29, July 17, 2024
In addition to any other unlawful practice on the basis of
				  religion prohibited by this chapter or the Act:
1.
"Religious" nature of a practice or
				belief
In most cases, whether or not a practice or belief is
				  religious is not at issue. However, in those cases in which the issue does
				  exist, the Commission will define religious practices to include moral or
				  ethical beliefs as to what is right and wrong which are sincerely held with the
				  strength of traditional religious views. This standard was developed in
United States v. Seeger
,
				  380 U.S.
				  163 (1965) and
Welsh v. United
				  States
, 398 U.S.
				  333 (1970). The fact that no religious group
				  espouses such beliefs or the fact that the religious group to which the
				  individual professes to belong may not accept such belief will not determine
				  whether the belief is a religious belief of the employee or prospective
				  employee. The phrase "religious practice" as used in this chapter includes both
				  religious observances and practices, as stated in §
										2(18) of this
				  chapter.
2.
Reasonable
				accommodation without undue hardship
A.
Duty to Accommodate
. It is unlawful employment discrimination for
				an employer, employment agency or labor organization (hereinafter collectively
				referred to as "employer" in this section) to fail to reasonably accommodate
				the religious practices of an employee or member or prospective employee or
				member, unless the employer demonstrates that accommodation would result in
				undue hardship on the conduct of its business.
B.
Reasonable accommodation
(1) After an employee or prospective employee
				or member notifies the employer of his or her need for a religious
				accommodation, the employer has an obligation to reasonably accommodate the
				individual's religious practices. A refusal to accommodate is justified only
				when an employer can demonstrate that an undue hardship would in fact 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.
(2) When there is more
				than one method of accommodation available that would not cause undue hardship,
				the Commission will determine whether the accommodation offered is reasonable
				by examining:
(a) The alternatives for
				accommodation considered by the employer; and
(b) The alternatives for accommodation, if
				any, actually offered to the individual requiring accommodation. Some
				alternatives for accommodating religious practices might disadvantage the
				individual with respect to their employment or union opportunities, such as
				compensation, terms, conditions, or privileges of employment. Therefore, when
				there is more than one means of accommodation which would not cause undue
				hardship, the employer must offer the alternative which least disadvantages the
				individual with respect to their employment or union opportunities.
C.
Alternatives
				for accommodating religious practices
(1) Employees or members and prospective
				employees or members most frequently request an accommodation because their
				religious practices conflict with their work schedules. The following
				subsections are some means of accommodating the conflict between work schedules
				and religious practices, which the Commission believes that employers should
				consider as part of the obligation to accommodate and which the Commission will
				consider in investigating a charge. These are not intended to be all-inclusive.
				There are often other alternatives that would reasonably accommodate an
				individual's religious practices when they conflict with a work schedule. There
				are also employment practices besides work scheduling that may conflict with
				religious practices and cause an individual to request an accommodation. The
				principles expressed in this chapter apply as well to such requests for
				accommodation.
(a)
Voluntary substitutes
				and "swaps"
Reasonable accommodation without undue hardship is generally
				  possible where a voluntary substitute with substantially similar qualifications
				  is available. One means of substitution is the voluntary swap. In a number of
				  cases, the securing of a substitute has been left entirely up to the individual
				  seeking the accommodation. The Commission believes that the obligation to
				  accommodate requires that employers facilitate the securing of a voluntary
				  substitute with substantially similar qualifications. Some means of doing this
				  that employers should consider are: to publicize policies regarding
				  accommodation and voluntary substitution; to promote an atmosphere in which
				  such substitutions are favorably regarded; to provide a central file, bulletin
				  board or other means for matching voluntary substitutes with positions for
				  which substitutes are needed. In some instances, the employer may have the
				  obligation to attempt to secure a substitute for the employee.
(b)
Flexible
				scheduling
One means of providing reasonable accommodation for the
				  religious practices of employees or members or prospective employees or members
				  that employers should consider is the creation of a flexible work schedule for
				  individuals requesting accommodation.
The following list is an example of areas in which
				  flexibility might be introduced: flexible arrival and departure times; floating
				  or optional holidays; flexible work breaks; use of lunch time in exchange for
				  early departure; staggered work hours; and permitting an employee to make up
				  time lost due to the observance of religious practices.
(c)
Lateral transfer and change of job
				assignments
When an employee or member cannot be accommodated either as
				  to their entire job or an assignment within the job, employers should consider
				  whether or not it is possible to change the job assignment or give the employee
				  or member a lateral transfer.
(2)
Payment of dues to a labor
				organization
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 should
				  accommodate the employee by not requiring the employee to join the organization
				  and by permitting them to donate a sum equivalent to dues to a charitable
				  organization.
D.
Undue hardship
(1)
Cost
. An employer may assert undue hardship to justify a refusal
				to accommodate an employee's or member's need to be absent from his or her
				scheduled duty hours if the employer can demonstrate that the accommodation
				would require "more than a
de minimis
cost".
See Trans
				World Airlines, Inc. v. Hardison
,
				432 U.S.
				63,
				84 (1977). The Commission will
				determine what constitutes "more than a
de minimis
cost" 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; this determination is made considering the number of
				individuals actually requesting accommodation and not generalized assumptions
				about others who may have similar religious beliefs or practices. In general,
				the Commission interprets this phrase as it was used in the
Hardison
decision to mean that costs similar to the regular
				payment of premium wages of substitutes, which was at issue in
Hardison
, would constitute undue hardship. However, in most
				circumstances the Commission will presume that 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 which an employer can be
				required to bear as a means of providing a reasonable accommodation. Further,
				the Commission will presume that generally, the payment of administrative costs
				necessary for providing the accommodation will not constitute more than a
de minimis
cost. Administrative costs, for example, include
				those costs involved in rearranging schedules and recording substitutions for
				payroll purposes.
The term undue hardship also includes non-economic
				  costs.
(2)
Seniority
				Rights
. 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 when doing so would deny another employee his or her job or
				shift preference guaranteed by that system.
Hardison
,
supra
, 432 U.S. at 80. Arrangements for voluntary substitutes
				and swaps (see division C(1)(a) of this subsection) do not constitute an undue
				hardship to the extent the arrangements do not violate a bona fide seniority
				system. Nothing in the Act or this chapter precludes an employer from including
				arrangements for voluntary substitutes and swaps as part of a collective
				bargaining agreement.