West Virginia Code of State Rules
Agency 77 - Human Rights Commission
Title 77 - LEGISLATIVE RULE HUMAN RIGHTS COMMISSION
Series 77-03 - Rules Regarding Religious Discrimination
Section 77-3-3 - Employment Discrimination Prohibited; Obligation to Make Reasonable Accommodations

Universal Citation: 77 WV Code of State Rules 77-3-3

Current through Register Vol. XLI, No. 13, March 29, 2024

3.1. No employer shall, on the basis of religion, discriminate against an individual concerning the terms, conditions, or privileges of employment unless it can be shown that the employer cannot reasonably accommodate an employee's or a prospective employee's religious observance or practice without undue hardship on the conduct of its business.

3.2. The duty not to discriminate on religious grounds includes an obligation on the part of the employer, and/or a labor organization, if applicable, to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship to the conduct of the employer's business, provided that the employee or prospective employee has notified the employer or labor organization of his or her need for a religious accommodation or the employer or labor organization has otherwise obtained knowledge of the need for such an accommodation.

3.2.1. Because of the particularly sensitive nature of refusing to hire or discharging an individual on account of his/her religious beliefs, the burden of proof that the accommodations required by the individual's religious needs impose an undue hardship to the conduct of the employer's business, is on the employer. Resolution of such cases depends on specific factual circumstances and involves a delicate balancing of an applicant or employee's religious needs with the degree of disruption imposed on the employer's business operation.

3.3. It is an unlawful employment practice for an employer to refuse to hire an applicant for employment or to discharge an employee who regularly observes Friday evening and Saturday, or some other day of the week, as the Sabbath or who observes certain special religious holidays during the year and, as as a consequence, does not work on such days, unless the employer can prove that there exists no reasonable accommodation of such religious needs or that such accommodations can only be made at the price of undue hardship.

3.4. The following subsections contain several suggested alternatives that may be used in attempting to accommodate the religious practices of employees or prospective employees. These suggested alternatives are not intended to be all inclusive as different factual circumstances surrounding the need for religious accommodation may require different solutions.

3.4.1. One possible means of reasonable accommodation without undue hardship is through voluntary swapping or substitution where a voluntary substitute with substantially similar qualifications is available. The individual seeking accommodation is responsible to facilitate the securing of a voluntary substitute when he or she knows of someone with substantially similar qualifications who is willing to substitute or swap positions. The duty to reasonably accommodate the religious practices of employees or prospective employees requires that the employer or labor organization facilitate the securing of a voluntary substitute with substantially similar qualifications as the individual requiring accommodation. Employers and labor organizations may consider some of the following means to facilitate the securing of such a voluntary substitute:
3.4.1.a. To publicize policies regarding accommodations and voluntary substitution;

3.4.1.b. To promote an atmosphere in which substitutions are favorably regarded;

3.4.1.c. To provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed;

3.4.1.d. The obligation to accommodate requires that the employer take affirmative steps to attempt to secure substitutions and swaps.

3.4.2. Employers and labor organizations may also consider creating a flexible work schedule for those individuals requiring religious accommodation. Some of the areas in which flexibility in work scheduling might be utilized are as follows:
3.4.2.a. Flexible arrival and departure times;

3.4.2.b. Floating or optional holidays;

3.4.2.c. Flexible work breaks;

3.4.2.d. Use of lunch time in exchange for early departure;

3.4.2.e. Staggered work hours; and

3.4.2.f. Use of accumulated compensatory time for time lost due to an observance of religious practices.

3.4.3. When an employee cannot be accommodated either as to his or her entire job or an assignment within the job, employers and labor organizations should consider whether or not it is possible to change the job assignment or give the employee a lateral transfer. As with voluntary substitutes or swaps, the availability of someone with substantially similar job-related qualifications may affect an employer's or labor organization's ability to allow such transfer or change in job assignment.

3.4.4. As a means of accommodating the religious practices of employees or prospective employees and when applicable, the Commission encourages employers and labor organizations to engage in discussions regarding exceptions to collective bargaining agreement provisions and any such discussions or agreement following such discussions may be considered as evidence of an attempt at reasonable accommodation.

3.5. A refusal to accommodate is justified only when an employer or labor organization, when applicable, can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. The employer of labor organization, when applicable, shall have the burden of showing that it took affirmative steps to attempt to reasonably accommodate an employee or prospective employees.

3.6. When more than one means of accommodation would not cause undue hardship, the employer must offer the alternative that least disadvantages the employee with respect to his/her employment opportunities. The employer or labor organization satisfies its duty to an employee or prospective employee once it offers all reasonable means of accommodation without undue hardship. An employee who fails to cooperate or accept accommodation may subject himself or herself to adverse or disciplinary action by the employer or labor organization where all reasonable accommodation without undue hardship has been offered.

3.7. 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 require a particular accommodation. Generally, a regular cost, such as the continual payment of a premium wage to a substitute, will constitute undue hardship. However, the infrequent or temporary payment of premium wages to a substitute while a more permanent arrangement is being sought are costs that the employer will usually be required to bear. Administrative costs of rearranging schedules or duty rosters will generally not constitute more than de minimis costs.

3.8. A mere assumption that many more people, with the same or similar religious practices as the person being accommodated, may also need accommodation, is not evidence of undue hardship.

3.9. Undue hardship may be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee's religious practices and doing so would deny another employee his or her job or shift preference guaranteed by that system. Arrangements for voluntary substitutes and swaps do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system. Nothing in these rules precludes an employer and a union from including arrangements for voluntary substitutes and swaps as part of a collective bargaining agreement.

3.10. An employer must accommodate an employee who refuses to perform certain tasks because of his/her religion unless those tasks are an essential function of the employee's position or cannot be reasonably reassigned to another employee.

3.11. An employer must accommodate an employee who refuses to comply with a dress or appearance code for religious reasons unless it can demonstrate that this refusal would violate an established health or safety code. A need of the employer to maintain a certain public image will not amount to undue hardship unless the employer can show that accommodation would have a detrimental impact on its business.

Disclaimer: These regulations may not be the most recent version. West Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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