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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As an associate pastor and business administrator in a large Southern Baptist Church I find this article very interesting and disturbing. I’m reminded that in the Old Testament when Daniel became a powerful advisor to the King he set aside his work to pray 3 times a day. Often sited as an example for modern day Christians to follow. In the New Testament Christians are given a command to “pray without ceasing.” I wonder what would happen if all Christians took these commands strictly and demanded “unscheduled breaks” from work to pray everyday during a 7-8 hour work shift? Not much would get accomplished in terms of work production. Employees are paid to work, not pray. It seems to me the demands placed on employers today to accommodate demands such as these goes to the ridiculous!
Steve,
Thank you very much for your feedback. You are not by any means alone in how you feel. I agree that if demands for accommodations were allowed to go unchecked it could certainly approach the ridiculous. Ariens’ argument appears to be that the accommodation demanded is not reasonable because a) the breaks are not scheduled and so it makes it difficult at best to plan; b) the breaks are really not 5 minutes but longer; and c) the disruptions have a significant impact on production and revenues. Again though, the real problem appears to lie less in whether Ariens is or is not continuing to accommodate such demands and more in what appears as its failure to even engage in the interactive process, i.e. to have a dialogue with the employees. The only other issue is that since Ariens was accommodating the request up until two weeks ago, it will need to indicate what exactly changed that now makes the request unreasonable. If Ariens had done that, or backs up and does it now, and if, after that dialog and good faith efforts to come up with a reasonable accommodation, it can show that the parties were unable to come up with a satisfactory accommodation then Ariens does not have to meet that demand, and it has done everything it is obligated to do.
I am no expert on Muslim religious practices by any means, but I understand that most Muslims pray five times every day at sunrise, midday, afternoon, sunset and after nightfall. Two of these prayer times will likely occur during a normal work shift..Therefore, Ariens, which provided 2 breaks during each shift Is probably well within their rights. A demand for 5 unscheduled prayer breaks is unreasonable but I do not disagree with your premise that the employer needs to have an interactive discussion about it. This is especially true since they previously provided 5 breaks. I am also not sure that 10 min. breaks are long enough though, again, I am no expert on that.
Hi Kirby,
Thanks for your comment. I too am not expert on Muslim religious practices, nor do I want to get into the specifics of anyone’s religious practices on this forum. However, if you are correct about the times of day for prayer in the Muslim faith, then yes, it would appear that the employees’ request is not reasonable and that Ariens would be within its rights. As you see though, the lesson for employers is that there is a difference between being right and doing things right–and it’s not always enough to just be right. You can be right and still lose because you didn’t do things right.
I am Muslim. Prayers only take about five minutes. So I don’t see the problem. Also two of the prayers, Fajr (Sunrise) and Isha’a (After sunset) are usually not within any working hours.
You are not the first person to raise this point. The issue appears to be that in this case, the workers were taking far more than 5 minutes each time, and more than 3 times a day. If that is true, then it is not hard to see why it became a problem. In May, some of those workers filed suit. We will probably hear more of the specifics as the litigation unfolds.
I have some sympathy for those employees who are not Muslim. It is states 53 workers who are Muslim but there is no mention of what percentage of the workforce this number is.
Given the 5 breaks previously allowed, and the time taken for these breaks as indicated by the company, one must ask why the other employees have not lodged complaints in relation to having to provide a level of work much higher than the Muslim workers. One would presume for the same level of pay.
I take note of the comments by the associate Pastor Steve, the company would be in real trouble if these other workers sought to enforce Christian beliefs.
One could also say this is the first step to enforce Muslim beliefs. The next step will be shift patterns that enforce every Friday off. Given Friday is an important day in the Muslim calendar.
I am not sure there will be any winners in this action.
Hi Phil,
Thanks for your comment. Employers do have a responsibility to make reasonable accommomdations of employees’ religious practices. The emphasis is on the word reasonable. If a requested accommodation poses an undue hardship, the employer is not obligated to grant the request. The employer does have to engage in dialog with the employee(s) to determine a) if the request is reasonable under the circumstances and b) if other equally or more effective alternatives are available. The employer may have a valid undue hardship argument here, however it appears that this employer failed to engage in the required dialog–and that is where it could find itself in trouble if any of the 53 employees filed a charge with the EEOC or a state counterpart. That dialog is particularly important here because it appears that it was accommodating these employees’ prayer breaks up until a few weeks ago. That said, I do not think we need to be so concerned for escalating demands if employer engage in that dialog, document the efforts and show that they either found or attempted to discuss alternatives and that the request in question poses an undue hardship. I believe that most employers would have no trouble showing that a demand for every Friday off would be an undue hardship.
There’s some confusion in this article. First, the analogy to disability accommodations is not a very good one. Employer obligations for making religious accommodations are much lower than for disability obligations. Second, the emphasis on dialog, while good, might be over-emphasized. These matters are not negotiations between requesting employees and management. Failure to reach an agreement with employees does not necessarily end the employer’s obligation. Third, a key may be the word “unscheduled.” Muslims pray at certain times of day. The times vary, but can be known in advance. The employees can tell the employer when on a certain day that prayer time is needed. I too would doubt that the employees need five prayer periods a day. Another interesting point is the employer specifying the location. If it is unclean or inappropriate, one can imagine the employees objecting.
Thank you for your feedback. I am sorry you found the article confusing. We are not privy to all the facts and therefore there is bound to be confusion. While we can argue whether the reasonable accommodation for religious practices is exactly the same as that for disability, I don’t think for purposes of this discussion that it matters much. The point is that it appears that this employer did not even attempt to engage in any dialog at all, and if that is true that is very significant. We will therefore have to agree to disagree on the point of dialog being over-emphasized. You are correct that just because the parties do not reach an agreement does not mean the employer is off the hook. It of course depends on why they do not reach an agreement. If the parties are unable to do so after the employer has attempted in good faith to offer a reasonable alternative and can show that the employees’ request poses an undue hardship it is unlikel that the employer would be obligated to provide the requested accommodation, however. As for your point about prayer times, it is not clear whether the employees did in fact advise this employer about prayer times in advance. Even if they did, however, 5 breaks at varyiing times under certain circumstances could still pose an undue hardship. Finally, an employer does have a right to designate a location for such prayer breaks, and we do not have any indication that the designated space is in fact unclear or inappropriate. Again, we do not have all the fact, so we are left guessing in a lot of key areas. Thank you again for your comment.
I think it is unreasonable to expect the employer to comply with the Muslims. A lot of people made some really good points, but I’d like to add a few. One, many Muslims come from places in the world where there is no separation of mosque and state. Their countries are ruled by theocracies and Islam’s rules are more important than anything. But here in the west, Thomas Jefferson created a separation of church and state for a reason. Christianity was marginalized and regulated to the private realm for a reason, because in his time the church wanted to delegate everyone else’s activities and daily lives based on their beliefs. Fast forward to the situation we have now with these Muslims. They want their religious “holidays” and “practices” to be regarded as more important than anything else. They see their beliefs as superseding company policies, county policies, state and government policies. To me, I’ve already drawn the line in the sand. If I own a company, it’s policies on holidays and extra time off, no matter what reason or what religion you belong to, are subjected to the same rules. If you are Christian and you want Christmas off, request it, it will be given to you if the company is able. If you are Jewish and you want your Jewish holidays off, you can put in a request just like everyone else. Muslims should be given no special treatment just because they are Muslim, which is exactly what they want. Not to mention, they aren’t asking for one holiday off, they are demanding 75-100 minutes extra off PER DAY for prayer. This “demand” should be treated no differently than any other request for time off from an employee. And Islam should be given no special favors over other religions that other employees at Ariens might have. In the West, Islam is no better, nor held in any higher regard, or more special than any other religion here.
Hi Beth,
Thank you for your feedback. We start at the baseline that the law requires reasonable accommodations for religious practices. That said, if the practices in question require 75-100 additional minutes per day as time off and the employee(s) cannot make up that time (either because they will not or because of the nature of the business or industry in question) then that would not be a reasonable accommodation and the employer would not be obligated to provide it. These situations tend to be very fact-sensitive inquiries. An employer who has a bright-line, inflexible policy about holidays or religious practices could find itself in some legal hot water. Employers faced with these types of requests should make sure to document how they are handled and why, particularly if they deny a particular request. Employers who claim that a request is not reasonable and/or presents an undue hardship need to be able to document how/why the request is not reasonable or poses an undue hardship.
How would Muslims be given 75 minutes off per prayer? I’m Muslim and we pray 5 times a day. Each prayer only takes about 5 minutes
See my answer to your previous comment.
Having lived in Egypt and other Mid East country these employees are taking advantage. First, Christians do not get these privledges even during Easter, Christmas, etc. Coptic Christians Fast and Pray 40 days several times a year. Are we providing for that. Catholics and Protestants fast and pray. Where does it end. Firstly, only in Saudi I believe are people required to close businesses during prayer time. The rule according to those other Islamic countries is that they can actually work during the prayer time if needed, as well as those prayers can be made up at the end of the day. The first prayer is very early in the morning (prayer times change with moon), next is around noon, one in afternoon, evening, night. There are names for all these 5 prayers. Most would not interferre with the work day, therefore 5 times is unreasonable. They are trying to get time for nothing.–in other words, they want to save their non work prayers and do them at work so they don’t have to get up early or whatever, Remember the prayers can be made up. List follows. As well, the comp;any is correct. The prayer wash ritual takes a lot of time, often involving a full shower (for instance if they had sex). there is always alwaYS washing required before prayer, This is why it is taking so long. Only 2 times fall within work day. Even if one is on evening shift, graveyard shift, etc. I am not racists, prejudice, or any such, just facts and based on what goes on in their country. Prayer list. and times: God ordered Muslims to pray at five set times of day:
Salat al-fajr: dawn, before sunrise.
Salat al-zuhr: midday, after the sun passes its highest.
Salat al-‘asr: the late part of the afternoon.
Salat al-maghrib: just after sunset.
Salat al-‘isha: between sunset and midnight.
Thank you for your feedback and insights. I am certainly not knowledgeable about the Muslim faith or what prayers can be done when. There is now litigation pending. It will be interesting to see if this information is revealed during litigation and if so what is done with it.