By Dawn Solowey and Lynn Kappelman
How Does “Undue Hardship” Fit into the Law of Religious Accommodation?
Under federal law, in religious accommodation cases, the employee must show that he or she: (1) has a bona fide religious belief that conflicts with a job requirement, (2) notified the employer of the belief, and (3) was disciplined for failing to comply with the conflicting requirement. If the employee succeeds in making that showing, the employer must show that it offered a reasonable accommodation, or could not do so without undue hardship. As a practical matter, employers face a high hurdle in establishing the affirmative defense of undue hardship.
Here’s How One Employer Managed to Show Undue Hardship
In EEOC v. JBS USA, LLC, the EEOC brought a pattern-and-practice case under Title VII against JBS, a meatpacking company, in the federal district court in Nebraska. The EEOC claimed 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/or to change the time of the meal break, during Ramadan, 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 more than “de minimus” (meaning “real” and “actual”) burden on coworkers.
The court held that JBS had proven that the unscheduled prayer breaks would impose more than de minimus costs on the company. First, 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, and the line was not stopped or slowed, the remaining workers on the line might not be able to keep up with required food safety practices. If the line was slowed or stopped, raw meat might be exposed to air and bacteria. The court also held that the breaks would reduce operational efficiency, and could require overtime expenses or result in an unsatisfactory product. The court noted that 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. Non-Muslim employees would be required to work harder, and under potentially dangerous conditions, as a result of the prayer breaks. Finally, the breaks could have a negative impact on employee morale, as employees would resent being required to work harder and faster to cover for Muslim coworkers taking a break.
Similarly, the court held that moving the meal break to accommodate sunset prayer, rather than the usual rolling meal break, 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, which would substantially decrease its value and result in financial loss. The meal break would also impose a burden on coworkers, such as by resulting in uneven breaks from the heavy, tiring and cold work in the plant, and by shortening shifts, resulting in decreased pay. JBS demonstrated that non-Muslim employees on one shift had walked off the job in protest.
So, What Does This Decision Mean for Employers?
The test for showing an undue hardship under federal law sounds easy enough to meet, since it ostensibly requires only proof of more than a “de minimus” cost or imposition on coworkers. However, as applied in the courts, the required showing to demonstrate undue hardship can be a demanding one. Speculative or vague assertions as to the potential financial costs of an accommodation are generally not enough. It’s also usually not enough to invoke a general claim that coworkers will react negatively to the accommodation, or that the accommodation will damage morale. Certain state laws, such as those in California, may impose an even more demanding standard for proving undue hardship than federal law does.
But the decision shows that it is not impossible for an employer to demonstrate an undue hardship. In this case, the employer was able to meet the test with a specific showing of a powerful combination of factors. For example, the company demonstrated that the accommodation would result in a quantifiable, and significant, financial loss; impose safety risks for coworkers and public health; and impose actual burdens on coworkers that were real enough to have caused non-Muslim employees to walk off the job. The court relied on the company’s detailed, factual showings on each of these factors in holding that there was proof of undue hardship.
What to Do When the Employer Is Faced with a Religious Accommodation Request That Just Won’t Work?
Because the undue hardship test can be demanding, an employer who is faced with a request for religious accommodation should start by seriously—and creatively—considering whether there is any reasonable accommodation that could work. If the employee’s initial proposal isn’t workable, there may be an alternative proposal that meets both the company’s and the employee’s needs. If the interactive process truly reaches an impasse, the employer should seek legal counsel as to whether there is a viable undue hardship defense under the applicable law, and if so, how to prove it.
You can find our Roadmap for Responding to a Request for Religious Accommodation here. For more information, please contact the authors or your Seyfarth attorney.