Employer not Required to Provide Religious Accommodation; Undue Hardship Proven

In what seems to be a rather rare result these days, an employer facing religious discrimination claims actually prevailed on its undue hardship defense!

In Equal Employment Opportunity Commission v. JBS USA, LLC, No. 10-318 (Dist. Nebraska, October 11, 2013), though the court found that the refusal to accommodate employees' religious prayer practices constituted religious discrimination, the court found that the employer proved its affirmative defense that it could not accommodate the requests because it would cause undue hardship.

The series of events which occurred over the course of several years is critical to the court's analysis. It all started several years ago when the U.S. Immigration Customs Enforcement raided the employer's facility and hundreds of employees were impacted. Thereafter, Somali refugees were recruited to work at the plant.

Roughly 3,000 employees worked two different shifts at the plant. Pursuant to the collective bargaining agreement, employees were scheduled to have at least one rest break and one meal break per shift. The start time varied by up to thirty minutes to adjust for production needs or emergencies.

The work performed by the employees involved slaughter and fabrication. The employees wore extensive safety gear and worked with sharp knives. It took time to come and go from the production floor. The process by which the slaughter and fabrication occurred required various different operations, and involved employees in numerous different capacities. It worked somewhat like an assembly line, where speed was often determined by the number of people available to work. Break times accordingly normally occurred on a rolling or staggered basis, which led to a gap in the chain. Mass breaks occurred only when there were sanitation problems or equipment breakdowns. Notwithstanding, employees were free to leave to get drinks of water, or could ask to leave and use the washroom at any time.

Some Somali Muslim employees asked for washroom breaks, and used those breaks to pray. Some employees were disciplined for walking off their lines without permission, but no one was disciplined or discharged for praying.

In order to participate in Muslim prayer practices, employees required one to three extra breaks per day, in addition to regular restroom breaks. Praying takes from five to ten minutes, and ablution or cleansing is required, which requires about five extra minutes. A study had been conducted which found that downtime cost the plant $100 per minute on the slaughter side, and $225 per minute on the fabrication side, in terms of labor costs. An additional ten minute break for employees would cost $18,180 per day per plant. Thus, these additional breaks imposed a significant cost burden on the company, and breaks jeopardized food safety, as there were very specific time limits imposed by the FDA.

In May 2007, a group of Somali employees walked off of the job in protest of the employer's refusal to provide an extra break for their sunset prayer. Management held various discussions internally and with outside religious organizations regarding proposed prayer accommodations. It was determined that scheduled break times would be moved to coincide with the prayer window, though they had to still ensure compliance with the CBA.

Additional issues arose when the Muslim employees claimed that the break schedule would not permit them to pray, and they began to strike. They ultimately reached an agreement with the union and the employer and the work shift was shortened by 15 minutes, and a rigid mass break would occur at sunset to allow for prayer. Non-Muslim employees, however, walked off the job because they were upset that their hours had been cut due to the shortened shift. To avoid a total plant shutdown, the employer reinstated the previous break schedule, and the union did not oppose this. Later, Muslim employees protested and were disciplined or terminated for withholding work. Production was accordingly negatively affected when chain speed had to be reduced and both the fabrication side and slaughter side processed considerably less than they were scheduled to have done.

The EEOC brought suit on behalf of the Muslim employees claiming religious discrimination in violation of Title VII. The first phase of the trial was held earlier this year, and thereafter, the parties sought to submit additional deposition designations and objections. The EEOC successfully demonstrated that the Muslim employees suffered adverse consequences because their religious tenets conflicted with employment requirements. Accordingly, the burden shifted to the employer to show an undue hardship. To do so, the employer had to demonstrate that the accommodation created more than a de minimis cost to the employer, or show that providing an accommodation would have caused more than a de minimis imposition on co-workers.

The U.S. District Court for the District of Nebraska concluded that the employer met its burden of establishing that providing unscheduled prayer breaks (e.g., allowing 200 employees to pray within a 10-minute window) posed safety and quality concerns, which caused greater than a de minimis burden on the employer and the other workers. Further, the employer showed that unscheduled breaks have a negative impact on operational efficiency, and that the costs associated with the extra breaks would have a significant financial impact. The employer was also able to establish that there were similar issues with providing mass meal breaks.

Undue hardship is rarely a successful defense for most employers. The circumstances surrounding this particular case, including the substantial number of employees, the assembly line-like production environment, the stringent FDA regulations, the collective bargaining agreement, and other factors ultimately led the court to conclude that a religious accommodation posed an undue hardship for the employer. Thus, it is important to remember that it is a very fact-specific inquiry and employers should take caution before assuming that this defense will be successful for them.