Quirky Question #202, Religious Accommodation


We have a group of employees who are Muslim and want to be allowed to take additional prayer breaks during Ramadan.   We would rather just have them take the whole day off as vacation rather than work a different shift than other employees with long breaks interspersed throughout the day.  Aren’t we safe telling them that they should take the day off?

Answer: By Gabrielle Wirth and Jessica Linehan

Gabrielle Wirth

Gabrielle Wirth

Jessica Linehan

Jessica Linehan

The answer will depend on your business and whether you can show that allowing these employees to work a different schedule accommodating these breaks would result in undue hardship, a very tough standard to meet.

This issue was examined recently in EEOC v. JBS USA, LLC. The EEOC brought a pattern-and-practice case under Title VII against JBS, a Nebraska meatpacking company claiming that JBS failed to reasonably accommodate Muslim employees’ religious practices. The EEOC claimed that JBS should have allowed Muslim employees to take unscheduled breaks to pray, and change the time of the meal break to coincide with the Muslim employees’ sunset prayer time.

The Court held that there were two ways for an employer to show undue hardship: by showing that the accommodation would impose more than a “de minimus” cost on the employer, or by showing that the accommodation would cause a real and actual burden on coworkers.  Carefully weighing the factual circumstances specific to the Muslim employees at JBS, the court held JBS made the requisite showing of hardship.   First, JBS proved that the extra breaks could have an adverse effect on food safety. For example, if a Muslim employee left a production line for an unscheduled prayer break, the remaining workers on the line might not be able to keep up with required food safety practices, unless the entire line was stopped which would be quite expensive.  In the alternative, if the line was slowed or stopped, raw meat might be exposed to air and bacteria.  Such breaks would further cause operational inefficiencies, overtime expenses and risk to product quality.  For instance, JBS calculated the average cost of a 10-minute break at $18,180 per day per plant.

The court held that JBS had also proven that the unscheduled prayer breaks would cause a real and actual imposition on coworkers. The court reasoned that when a Muslim employee took a prayer break, another employee would need to leave his or her own work aside to fill in.  This would result in non-Muslim employees working harder than their Muslim co-workers and under potentially unsafe conditions.

Similarly, the court held that moving the meal break to accommodate sunset prayer would impose costs on the employer and burden coworkers. The meal break would result in cattle being left on the “kill floor” longer than 45 minutes, potentially decreasing its quality and value. The meal break would also impose a burden on coworkers, lengthening the total workday for the same pay, and causing uneven breaks for workers with physically demanding jobs working in a cold plant.

You can see that the fact that the workers were in a production line, and that these changes would impose a risk to product quality and safety and would necessarily affect all other employee on the line was key to the Courts decision that the accommodations to the Muslim employees would be an undue hardship in this case.  These types of decisions must be made carefully after full consideration of the facts.

Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

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