The Employer's Legal Resource: The Religious Accommodation Process is Not Swift

05.01.13

In Grand Island, Nebraska, there is a beef processing plant, JBS Swift. On behalf of 153 of its Somali Muslim employees, the EEOC filed a lawsuit against JBS Swift alleging a pattern or practice of unlawful denial of religious accommodations, among other things. This is a long and complicated story, but here is the (somewhat) short version.

This plant is unionized. The collective bargaining agreement (CBA) covers the 153 employees on whose behalf the EEOC brought suit. A summary of the some of the pertinent CBA provisions include:

  • A nondiscrimination clause including requiring JBS Swift and the Union to provide religious accommodations. Employees were to make written requests for religious accommodations and were to cooperate with JBS Swift and the Union to explore reasonable alternatives.
  • JBS Swift provided one unpaid meal period per shift.
  • JBS Swift provided two paid rest periods per shift. The timing of the paid rest periods was to vary according to production needs or emergencies.

The company also had an informal practice of allowing an employee to ask for an unscheduled break to allow an employee to go to the restroom (or for other physical needs), but there was no standard practice to allow a person to request an unscheduled break to pray.

JBS Swift had two production shifts (A and B) and a clean-up shift. A majority of the Somali Muslim employees worked on B shift (3:00 p.m.-11:30 p.m.).

JBS Swift is in a very competitive, low margin industry. Having employees off the production line has a demonstrable adverse impact on its bottom line.

Religious Beliefs

The EEOC presented evidence that the 153 Somali Muslim employees believe that the Qur'an is the literal word of God and that they should pray in accordance with the Prophet Muhammad's teachings, which call for five prayers per day. There were some variances among the employees as to the window of times during which they were to pray, the length of time required to complete the prayers, the prayer schedule, the exact time of the prayers, and when it might be permissible to skip prayers, combine prayers, or pray late. There was also evidence as to Ramadan requirements.

Events Leading to the Charge of Discrimination

For some time, or so it seemed, the employees were able to manage their prayer schedule during regularly scheduled breaks and even perhaps unscheduled but approved breaks. However, in the Spring of 2007, a group of Somali Muslim employees engaged in a walk out related to their sunset prayer. In an effort to avoid further conflict, management allowed some to transfer to A shift. This led to management taking a broader look at the impact of accommodating more prayer requests, should they come. This analysis continued over many, many months. JBS Swift determined the costs could be significant.

In September 2008, a trainer grabbed a female Somali Muslim employee's shoulder while instructing her where to move on the production line. Some female Somali Muslim women observed this and believed he had mistreated her. Several of them left the line and met with HR to discuss the incident. Afterwards, they returned to the line but then went to the storage area to pray, placing cardboard pieces on the floor on which to kneel.

The operations manager and superintendent entered the storage area (it is unclear whether intentionally or unintentionally). When the women left, one of the women believed the superintendent kicked the cardboard piece, disrespecting her prayer which upset her greatly. The women returned to HR. Because they seemed quite upset, HR sent them home and undertook an investigation.

Over the next several days, meetings were held but tensions continued to escalate. Two days later, a more general request was made that Somali Muslim employees be allowed to leave the line, one by one, for five minutes to pray "on time" throughout the shift. JBS Swift shared some of its concerns with this, but reiterated that employees could pray anywhere during the breaks. The meeting concluded with the understanding that they would meet again to further discuss the issue. More meetings ensued. JBS Swift was concerned how it could, for example, accommodate its approximately 200 Muslim employees for sunset prayer (in an approximately 10 minute window) without shutting down the line.

After one of these meetings, approximately 150 Somali Muslim employees left the facility to "strike." This was not an official Union strike. In fact, the Union advised the Somali Muslim employees to return to work and submit a written request for accommodation as set out in the CBA. Some returned to work, others did not. This continued. Some were fired, some were not.

The EEOC got involved. Charges were filed. The EEOC filed a lawsuit - a big one.

So Now A Jury Will Decide

JBS Swift tried to convince the court to decide (without the necessity of a jury) that it provided a reasonable accommodation - allowing the Somali Muslim employees the ability to pray during the two paid breaks and unpaid meal break wherever they wanted at the Facility. JBS Swift tried to convince the court that the request that it give up to 200 Muslim employees time away from the line to pray at scheduled, coordinated times would cause it an undue hardship.

The Court decided that there were too many conflicting stories and pieces of evidence to evaluate to decide this without a jury. Not surprising.

Your Takeaway

When you receive a request for a religious accommodation and you and the employee work out a solution, document it and be done with it. Congratulations.

However, when you receive such a request and you and the employee cannot work out a solution, you might seek legal counsel. Even what seems like an easy call to you may not be so clear to the court who reviews it two years down the road.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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