You may have heard about the 53 Muslim workers in Wisconsin who walked off their manufacturing jobs over their employer’s retraction of unscheduled prayer breaks. The employees are claiming religious discrimination and the employer, Ariens, who manufactures lawn mowers and snow blowers is claiming undue hardship. Just about every employer knows that it cannot discriminate against an applicant or employee based on religio
us beliefs and practices. Does that mean that an employer must accede to every employee’s request for time off or exceptions to policies that are based on a religious belief or practice? Conversely, most employees know that employers have the right to set policies and rules that ensure productivity and proper workplace behavior. Does that mean that an employee whose religious practices may not square entirely with those policies must always choose between their job and their religion? The answer to both questions is “No”. Wait a minute. So are both sides right–and wrong? How can that be? Join The EmpLAWyerologist after the jump and we’ll sort it out as best we can…
(image from examiner.com)
So what happened? First let me say from the outset that since this matter is not a lawsuit, with documents or evidence, our knowledge of relevant facts will be limited. That said, here’s what is known:
Ariens, previously allowed its 53 Muslim employees to take 5 unscheduled prayer breaks every day in accordance with their religious practices. Being production workers, that meant they stepped off the production lines 5 times a day. It is not clear how long Ariens allowed this practice, but it does seem to have been an established practice. Ariens has now changed its policy, asserting that the 5 unscheduled prayer breaks result in loss to production and annual revenue losses of $1 million. Ariens does provide two ten-minute breaks during each shift, and also provides a room where workers can pray. Under the new policy, the 53 workers were told that they must limit their prayer breaks to those two ten-minute breaks in the designated room. So is this a case of religious discrimination, or did the employer try to provide a reasonable accommodation, or does the request pose an undue hardship to this employer? Let’s break things down further and see where that leads us.
The employees cite the tenets of their religious faith as requiring prayers to be said at specific times during the day. These times apparently are changeable and don’t lend themselves to a precise schedule, but are not otherwise flexible. To that extent, the two scheduled ten-minute prayer breaks would not address these workers’ needs. The workers contend that previously Ariens allowed these breaks that were 5 minutes only and posed no problem. Ariens states that while the time spent in prayer itself may only be 5 minutes, the breaks themselves are longer in that it takes several minutes for the employees to get to and from the designated location for these prayers. In some cases the prayer breaks actually take closer to 15 or 20 minutes each, according to Ariens. Ariens also contends that the breaks do cause problems, because other workers now have to cover for those on prayer break– 5 times a day for perhaps as much as 15 or 20 minutes each time. Ariens also says that it is willing to work with these employees to see if it can find them other shifts that do not overlap with these 5 daily prayer times. (Apparently 10 out of the 53 workers are willing to come back to work and see if either there is an alternate shift or some other type of compromise.)
So who’s right?
The employees clearly engage in a religious practice based on sincerely held religious beliefs. Ariens has accommodated their 5 unscheduled prayer breaks up until now, perhaps without significant problems. Could something have changed? Sure. Was the alleged loss to production and revenue just this year or gradual? The employees are entitled to a reasonable accommodation of their religious practices. On the other hand, while Ariens may have been able to accommodate these breaks in the past, maybe something did change and it can’t continue agreeing to all 5 unscheduled breaks. To what extent would these workers be willing to accept a compromise? That’s not really clear. If Ariens can show that these breaks pose an undue hardship, neither the EEOC nor a court are likely to support 5 unscheduled prayer breaks.
Assuming for the moment that everything is as Ariens says, it is not hard to see where 5 unscheduled prayer breaks of up to 20 minutes each could hurt production and affect revenues. However, Ariens is obligated to have a dialogue with these workers and at least try to work out an alternative. If such efforts yield no satisfactory result for either side, Ariens has fulfilled its obligations and it is not liable under Title VII, and, probably not liable under any state anti-discrimination laws either. The problem is it’s not clear that Ariens did that. In addition, Ariens does not appear to have shared the data that presumably supports their claims of disruption to production and revenue loss. Ariens is now in a position in which a number of employers find themselves. It may be right on the substantive issues, but could lose if it were in court, if it didn’t go through all the legal/procedural requirements–and it is also not clear whether Ariens can or would back up its assertions about lost production and revenue.
Regardless of specifics, employers can learn the following from Ariens:
While you should have clear policies and procedures that you apply consistently, you must have some flexibility;
Take the same steps as you would when a qualified individual with a disability makes a request for an accommodation: Begin and engage in the interactive process and see if you can either grant the request or provide a reasonable, effective alternative.
Document everything, including the request, the interactive process, alternatives offered, whether an accommodation was provided, whether there was an undue hardship, what was done and why. Whenever possible have supporting data available.
And finally– you guessed it–consult with employment counsel.
In other news, we’ve been hearing about a few different FLSA and Dept of Labor issues, which we will probably begin discussing next week, so c’mon back and join us then!
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people.
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