In both disability and religious discrimination cases employers, especially larger ones, are often taken to task by the EEOC for arguing that an undue hardship exists that prevents them from accommodating an employee’s disability or sincerely held religious belief. While in some cases a simple accommodation (e.g., ergonomic chair) may do the trick, in most cases – especially those that form the basis of a federal lawsuit – the accommodation is much more onerous and requires an employer to expend significant resources and/or severely restructure a job. Although this burden is high, a recent decision from the U.S. District Court for the District of Nebraska in EEOC v. JBS USA, LLC, 8:10-CV-318 (D. Neb. Oct. 11, 2013), in dismissing a pattern or practice lawsuit brought by the EEOC, demonstrates that the undue hardship defense is alive and well!
In EEOC v. JBS USA, LLC, Chief Judge Laurie Smith Camp entered judgment for the employer, finding that it established the affirmative defense of undue hardship since “a religious accommodation for Muslim employees, within the parameters requested [by the EEOC], would have caused more than a de minimis burden on JBS [the employer] and on its non-Muslim employees.” Id. at 40.
JBS operates beef processing facilities in several states, including Grand Island, Nebraska. Id. at 2. In 2007, between 80 to 100 Somali Muslim employees in the Grand Island location took part in a “walk out” in protest of JBS’s refusal to allow them use their “informal breaks” (typically reserved for bathroom breaks) to pray, instead requiring them to pray during their regularly scheduled breaks. Shortly thereafter, JBS also refused (after much deliberation) to change all employees’ meal break times during Ramadan to accommodate its Muslim employees’ prayer schedule and to shorten the overall workday (with a corresponding decrease in pay for all employees). Id. at 23. The EEOC brought suit alleging that JBS violated Title VII by engaging in a pattern or practice of failing to reasonably accommodate the religious practices of Muslim employees in that it failed to: (1) allow Muslim employees to take unscheduled breaks to pray; and/or (2) move the meal break during the remainder of Ramadan 2008 to a time that coincided closely with such employees’ sunset prayer time. Id. at 28.
Basis Of Decision
In reaching her decision, Judge Camp noted that an employer can establish an undue hardship in two ways: (1) the accommodation creates more than a de minimis cost to the employer; or (2) the accommodation would have caused more than a de minimis imposition on co-workers. Id. at 32-33. Judge Camp held that the two accommodations sought by the Muslim employees – permission to take unscheduled breaks during the day to pray and to move the meal break period during Ramadan and shorten everyone’s work shifts – would have resulted in an undue hardship for JBS under either theory. Id. at 34.
With respect to the request for unscheduled prayer breaks, Judge Camp found that granting such a request would have imposed a greater than de minimis burden on JBS and on the non-Muslim employees. For example, if the production lines were not shut down completely during these break times, the remaining workers would have to work harder and at dangerous speeds. Id. at 35. Additionally, if the lines were merely “stopped or slowed,” the raw meat might be exposed to air and bacteria for a prolonged time, increasing the risk of contamination. Id. at 35-37. Such an accommodation would also have a negative impact on operational efficiency (e.g. the non-Muslim employees would have to work quicker, and thus, would not be able to meet quality specifications) and would also create a substantial financial burden based on the decrease in production and decreased employee morale if non-Muslims were forced to work harder and faster to cover for the Muslim employees taking extra breaks. Id. at 37.
With respect to the requested accommodation of moving all employees’ meal break periods to coincide with the sunset prayer time during Ramadan, Judge Camp ruled that this too created an undue hardship since a 30-minute mass break would result in cattle being left on the “kill floor” for longer than 45 minutes, thus substantially decreasing its value and causing JBS to incur a financial loss. Id. at 38. Additionally, a 30-minute mass break would overwhelm JBS’s facility given that its locker rooms, restrooms, etc. were not large enough to accommodate the large influx of employees that such a mass break would cause. Id. Furthermore, Judge Camp held that JBS established greater than a de minimis imposition on its non-Muslim employees as this proposed accommodation would decrease their compensation and negatively impact their work schedules. Id. at 39.
Implications For Employers
As we have previously blogged several times – most recently here – employers faced with a claim of religious discrimination under Title VII who refuse an accommodation request must be prepared to come forward with specific evidence demonstrating the “undue burden” that granting the request would cause. Conjecture and speculative “evidence” of the purported undue burden is not enough to establish a cognizable defense. Rather than merely speculating as to potential harm it possibly would have incurred, JBS – as all employers should do – came forward with facts and figures that Judge Camp heavily relied upon in dismissing the EEOC’s case as it was clear that the proposed accommodations posed an undue hardship both on JBS as well as JBS’ non-Muslim employees. This decision should serve as a helpful roadmap for employers going forward seeking to establish the undue hardship defense to a failure to accommodate claim under either Title VII or the ADA.
Readers can also find this post on our Workplace Class Action blog here.