The question is whether there can be an optional question inserted in job applications as to whether Muslim individuals or similar persons would have a religious objection to delivering alcohol.
A quick check of the EEOC website indicates the following relevant passage:
Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law . . .[O]ther employers (for example not churches or other religious organizations) should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor.
In other words, a direct inquiry as to one’s religion would be prohibited. But what if you mention on employment applications, without asking about one’s specific religion, that they might be delivering alcohol products and asking if they would have a problem doing so? Could you be sued for doing so?
Unfortunately, it could go either way. Here are the two arguments:
- There is no discrimination against religion–you are actually honoring it. You are simply giving them a “heads up” there may be difficulties with their beliefs in such deliveries. Isn’t that something that a prospective employee would like to know before joining the team?
- You cannot ask an applicant about their religious beliefs, but here you are indirectly doing so. If they say they cannot make the deliveries, it is because of their religious beliefs so in essence you are making that inquiry. If they cannot do so, it gives you the right to deny the application. It may also come out in discovery that you have a number of Muslim workers that have objections (which you do not like) and that is the reason you have posed the question.
If you do want to broach the subject in the application, you might consider the following:
Optional Question: We do not make inquiries into an applicant’s religious denomination, religious affiliation, places of worship or religious holidays. Nor do we discriminate for or against any religion. We honor the religious beliefs of our employees, seek to accommodate them, but at the same time do not want you to be uncomfortable in performing certain services. As a disclosure, part of your duties may involve the lawful delivery of alcoholic beverages or marijuana paraphernalia. Without disclosing any religious denomination or belief, is this something you will not be able to do?
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