Diversity & Inclusion

Prayer breaks present difficult religious accommodation issues

by Steven T. CollisPrayer break

Recent news stories describe the tension between Muslim workers seeking multiple prayer breaks at specified times throughout their workday and employers that need those workers on the assembly line. Many Muslim employees have walked off the job, claiming their prayer break requests have been unlawfully denied. With so much coverage of religious accommodation cases in the news, this article addresses how to handle this somewhat difficult scenario.

Case in point

A company, a manufacturer of lawn mowers and snowblowers, had previously allowed 53 Somali immigrant production workers to leave their workstations to pray at the times required by their Muslim faith. In recent months, however, the company decided not to accommodate special prayer breaks, requiring instead that workers leave their assembly line positions only during their two 10-minute breaks per shift. Although the company provides prayer rooms that the Muslim employees may use for their daily prayers, it says it costs too much in lost productivity to shut down an assembly line for unscheduled prayer breaks.

In January of this year, the Muslim employees walked off the job to protest the company’s policy, which they say forces them to choose between their religion and their jobs. By February, many had returned to work, but the company fired seven of them for continuing to take unscheduled prayer breaks, and 14 employees resigned because of the policy.

The issue has attracted the attention of the news media as well as advocacy groups, including the Council on American-Islamic Relations. The group planned to file a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that the company failed to reasonably accommodate the Somali workers’ religious beliefs.

Religious discrimination prohibited

Title VII of the Civil Rights Act of 1964 and state laws prohibit employment discrimination based on religion. The laws protect employees against being offered less favorable terms or conditions of employment, including pay, job assignments, promotions, training, and fringe benefits, because of their religious beliefs. The laws also prohibit workplace harassment and retaliation based on religion.

Title VII defines “religion” very broadly to include organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism as well as sincerely held religious beliefs that are not part of a formal church or sect. The inquiry for determining whether a practice or belief is religious under Title VII is whether it involves moral or ethical principles about right and wrong that are sincerely held with the strength of traditional religious views. Title VII also extends workplace protections to employees who are discriminated against because they don’t believe in religion or a particular set of religious beliefs.

Reasonable religious accommodations

Under both federal and state laws, employers have a duty to reasonably accommodate employees’ religious practices or observances unless doing so would result in an undue hardship. Job applicants or employees must make the employer aware of the need for an accommodation and indicate that they are requesting it because of a conflict between a workplace policy or requirement and a religious belief or observance.

Common types of religious accommodations that may be required include:

  • Allowing scheduling changes, voluntary substitutes, and shift swaps;
  • Providing an exception to a dress or grooming policy;
  • Allowing the use of a work facility for a religious observance;
  • Accommodating prayer or other types of religious expression; and
  • Making a lateral transfer or changing job assignments.

Importantly, an employer may not deny employment to a job applicant based on an assumption that the applicant will need a religious accommodation. Under the U.S. Supreme Court’s 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., if an applicant can show that her need for a religious accommodation is a “motivating factor” in the employer’s decision not to hire her, the employer has violated Title VII, regardless of whether it had actual knowledge of the applicant’s religious beliefs or whether she would actually need an accommodation.

Undue hardship analysis

An employer doesn’t have to accommodate an employee’s religious belief or practice if it would impose an undue hardship on the company’s business. An undue hardship will justify the refusal to accommodate a religious practice or observance if the employer can demonstrate that the accommodation would require “more than a de minimis [insignificant] cost.” The analysis of what constitutes “more than a de minimis cost” weighs the identifiable cost in relation to the size and operating costs of the employer and the number of employees or applicants who will need a particular accommodation.

Generally, the administrative costs involved in rearranging schedules and recording substitutions for payroll purposes are not deemed “more than de minimis” and therefore wouldn’t be an undue hardship. But regularly paying premium wages to substitute workers may very well meet the criteria of an undue hardship.

Significantly, the undue hardship standard is much lower than the standard for establishing an undue hardship under the Americans with Disabilities Act (ADA). The ADA defines “undue hardship” as a “significant difficulty or expense,” which is vastly more difficult to establish than “more than a de minimis cost.” Consequently, an undue hardship under Title VII may arise because an accommodation reduces the efficiency of the employer’s operations, infringes on other employees’ rights or benefits, impairs workplace safety, or imposes another burden on the operation.

It isn’t enough, however, to claim an undue hardship based on fears, prejudices, or general conclusions or assumptions. An undue hardship must be based on actual information, not hypotheticals or potential consequences. For example, management may not simply claim that a female Muslim worker’s religious practice of wearing a head scarf would impose a safety risk when a short head scarf that is tucked in and secured to her head may alleviate the safety concerns.

In the case described above, the lawn mower and snowblower company has claimed an undue hardship based on the significant loss in productivity, perhaps amounting to millions of dollars a year, that results from more than 50 production workers leaving their assembly line posts at unscheduled break times. Because the case hasn’t played out in court yet, we don’t know whether the employer’s argument will prevail, but it will likely need to provide calculations or other evidence of lost productivity to support its defense.

Single vs. multiple employee accommodations

An employer may be able to reasonably accommodate one or two employees who need a flexible schedule for prayer breaks without experiencing an undue burden. But what if the accommodation requests keep coming? How many is too many, justifying an undue burden defense? That will likely be a key question in the Somali Muslim case.

The company appears to have allowed a small number of Muslim employees to take unscheduled prayer breaks at sunrise or sundown without a problem, but when its ranks of Somali employees grew substantially, it put its foot down and decided to limit prayers to the two scheduled break periods allotted to all employees.

The EEOC takes a position on this issue in a nonbinding guidance document titled “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The agency offers an example in which three out of 10 Muslim employees in a 30-person department ask for a prayer accommodation, stating the company should accommodate the three employees if it can. The agency says the company shouldn’t deny the request based on speculation that other Muslims will seek the same accommodation. Instead, the employer must continue to grant new accommodation requests until another request would cause an undue hardship. The EEOC’s example states, “If accommodating five employees would not cause an undue hardship but accommodating six would, the sixth request could be denied.”

An interactive process

The regulations implementing Title VII don’t include a specific provision that requires an employer to engage in an interactive process with the affected employee to determine whether a reasonable accommodation is possible. That, too, is different from the ADA, which requires an interactive process for determining disability-related accommodations.

However, Colorado’s regulations state that after an employee or a job applicant requests an accommodation for a creed or religious practice, “the covered entity has a duty to engage in a good-faith interactive dialogue to determine an appropriate accommodation.” Therefore, the best practice for Colorado businesses faced with a religious accommodation request is to engage in an interactive process.

Not only is an interactive dialogue legally required, but it will also help you avoid making decisions based on improper reasons or assumptions, ensure that you consider all possible accommodations, and create a record to support your ultimate decision in case a challenge arises.

Implementing a sound religious accommodation policy

To be prepared for prayer break requests and other religious accommodations, start by having a reasonable accommodation policy in your employee handbook or online employee policy manual. Make sure employees know how to request an accommodation, whether it’s for a religious practice or a disability. Include a statement that the company will make reasonable accommodations unless doing so will impose an undue hardship on your business.

Decide who has the authority to grant or deny accommodation requests, and make sure that person (or group of people) understands how to analyze the issue and the consequences of getting it wrong. I recommend that an HR director, compliance officer, or another experienced manager handle all workplace accommodation requests.

When an employee makes a request for a reasonable religious accommodation, engage in an interactive process with him, just as you would for a disability-related accommodation request. The employee may suggest numerous workable solutions. For example, in a nonassembly line setting, some workers may be able to pray at their workstations and make up the time by coming in early or staying late. Or perhaps you can schedule Muslim employees so they aren’t at work at sunrise or sundown and you need not accommodate the changing time of their prayer breaks. The point is to talk it through with the employee, get his input, and explore possible options. Ensure that you document all your accommodation efforts.

If you have concerns about whether you can reasonably accommodate prayer breaks or other religious practices, consider the true impact the proposed accommodations will have on your business. Don’t make assumptions or come to hasty conclusions because you don’t want to deal with the request. Instead, if you believe an accommodation will impose more than a small cost or burden on your operations, be prepared to back up your decision with actual numbers before you deny the accommodation request. As with other employment decisions, be prepared to defend your decision with a well-documented analysis.

Finally, be sure that managers and supervisors know not to retaliate against Muslim workers or other employees who have requested religious accommodations. The wrong decision by a frontline supervisor may undo all your accommodation efforts if his actions result in a retaliation claim.

In short, take your organization’s accommodation duty seriously, and be careful not to take adverse action against employees or job applicants because of their religious beliefs. When in doubt, consult with competent employment counsel.

Steven T. Collis is the chair of Holland & Hart LLP‘s religious institutions and First Amendment practice group and a member of the firm’s labor and employment group. He may be contacted at stcollis@hollandhart.com.

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