Recent news stories describe the tension between Muslim workers seeking multiple prayer breaks at specified times during their workday and employers who need those workers on their assembly lines. Many Muslim employees, including some in Colorado, have walked off the job, claiming their prayer requests have been unlawfully denied. With religious accommodations cases in the news, let’s look at how to handle these tricky situations.

Case In Point

The Muslim faith requires five daily prayers at specific times of the day, such as pre-dawn and sunset. Ariens Company, a manufacturer of lawn mowers and snowblowers, previously had allowed 53 Somali immigrant Muslim production workers to leave their work stations to pray at times required by their faith. In recent months, however, Ariens decided not to accommodate special prayer breaks, requiring instead that workers only leave their assembly-line positions during their two 10-minute breaks per shift. Although Ariens provides prayer rooms that the Muslim employees may use for their daily prayers, it says it costs too much in lost productivity to shut down an assembly line for unscheduled prayer breaks.

In January of this year, the Muslim employees walked off their jobs to protest Ariens’ policy which they say forces them to choose between their religion and their jobs. By February, many had returned to work but seven were fired for continuing to take unscheduled prayer breaks and 14 resigned because of the policy.

The issue has attracted the attention of the news media as well as advocacy groups, including the Council on American-Islamic Relations. The group planned to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that Ariens failed to reasonably accommodate the Somali Muslim workers’ religious beliefs.

Religious Discrimination Prohibited

Title VII and the Colorado Anti-Discrimination Act (CADA) both prohibit employment discrimination on the basis of religion. These laws protect against offering less favorable terms or conditions of employment, such as pay, job assignments, promotions, training, fringe benefits, etc., as well as prohibiting workplace harassment and retaliation based on religion.

Title VII defines “religion” very broadly to include organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, as well as sincerely held religious beliefs that are not part of a formal church or sect. In determining whether a practice or belief is religious under Title VII, the inquiry is whether it involves moral or ethical beliefs as to right and wrong which are sincerely held with the strength of traditional religious views. Title VII also extends workplace protections to those who are discriminated against because they do not believe in religion or a particular set of religious beliefs.

CADA also embraces a broad definition of religion and creed. Colorado’s Civil Rights Commission regulations define religion to mean all aspects of religious observance, belief and practice that need not be part of a particular organized religion, sect, or faith.

Reasonable Religious Accommodations

Under both federal and state law, Colorado employers have a duty to reasonably accommodate the religious practices or observances of employees, unless doing so would result in an undue hardship. An applicant or employee must make the employer aware of the need for an accommodation and that it is being requested due to a conflict between a work policy or requirement and a religious belief or observance.

Common types of religious accommodations that may be required include:

• scheduling changes, voluntary substitutes, and shift swaps

• providing an exception to your dress or grooming policy

• use of the work facility for a religious observance

• accommodating prayer or other types of religious expression

• lateral transfer or change of job assignments

Importantly, an employer may not deny employment to an applicant based on an assumption that the applicant will need a religious accommodation. Following the Supreme Court’s 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., if an applicant can show that the need for a religious accommodation is a “motivating factor” in the employer’s decision not to hire him or her, the employer violates Title VII, regardless of whether the employer had actual knowledge of the applicant’s religious beliefs or whether he or she will actually need an accommodation.

Undue Hardship Analysis

An employer does not have to accommodate an employee’s religious belief or practice if it would impose an undue hardship on the conduct of the employer’s business. An undue hardship will justify the refusal to accommodate a religious practice or observance if the employer can demonstrate that the accommodation would require “more than a de minimis cost.” The analysis of what constitutes “more than a de minimis cost” weighs the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation.

Generally, the administrative costs involved in rearranging schedules and recording substitutions for payroll purposes are not deemed “more than de minimis” so would not be an undue hardship. But, the regular payment of premium wages for substitute workers may very well meet the criteria as an undue hardship.

Significantly, this is a much lower standard than is required for establishing an undue hardship under the Americans with Disabilities Act (ADA). The ADA defines an undue hardship as a “significant difficulty or expense” which is vastly more difficult to establish than “more than a de minimis cost.” Consequently, an undue hardship under Title VII may arise because an accommodation reduces the efficiency of the operation, infringes on other employees’ job rights or benefits, impairs workplace safety, or some other burden on the operation.

It is not enough, however, to claim an undue hardship based on fears, prejudices, or general conclusions. It must be based on actual information, not hypotheticals or potential consequences. For example, management may not simply claim that a female Muslim worker’s religious practice of wearing a headscarf would impose a safety risk when a short headscarf that is tucked in and secured to the worker’s head may alleviate those safety concerns.

In the Ariens case, the company alleges an undue hardship based on the significant loss in productivity, perhaps millions of dollars per year, that results from having over 50 production workers leave their assembly-line posts at unscheduled break times. Because that case has not played out in court yet, we do not know if their argument will prevail, but they’ll likely need to provide calculations or other evidence of lost productivity to support their defense.

Single Versus Multiple Employee Accommodations

Employers may be able to reasonably accommodate one or two employees needing a flexible schedule for prayer breaks without it resulting in an undue burden. But what about when the accommodation requests keep coming? How many is too many, justifying an undue burden defense?

That will likely be a key question in the Ariens case. Ariens appears to have allowed a small number of Muslim employees to take unscheduled prayer breaks at sunrise or sundown without it causing a problem, but when its ranks of Somali Muslim employees grew substantially, it put its foot down and decided to limit prayers to the two scheduled break periods allotted to all employees.

The EEOC takes a position on this issue, in a non-binding guidance document called “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The EEOC offers an example, stating that if three of ten Muslim employees in a 30-person department ask for a prayer accommodation, the company should accommodate those three employees if it can do so. The EEOC writes that the company should not deny the request based on speculation that others of that faith will seek the same accommodation. Instead, the employer must continue to grant any new accommodation requests until such time as another request would cause an undue hardship. The EEOC’s example states “if accommodating five employees would not cause an undue hardship but accommodating six would, the sixth request could be denied.”

An Interactive Process in Colorado

The regulations implementing Title VII do not include a specific provision requiring employers to engage in an interactive process with the affected employee for determining whether a reasonable accommodation is available. This too is different from the ADA which requires an interactive process for determining disability-related accommodations.

Colorado’s regulations, however, state that after an individual requests an accommodation of a creed or religious practice, “the covered entity has a duty to engage in a good-faith interactive dialogue to determine an appropriate accommodation.” Therefore, the best practice for Colorado businesses is to engage in an interactive process when faced with a religious accommodation request.

Implementing A Sound Religious Accommodation Policy

To prepare to handle prayer break requests and other religious accommodations, start by having a reasonable accommodation policy in your employee handbook or online employee policy manual. Make sure employees know how to request an accommodation, whether for religious or disability reasons. Include a statement that the company will make reasonable accommodations unless doing so with impose an undue hardship on the company. Decide who has the authority to grant or deny accommodation requests and make sure that person (or group of people) understands how to analyze the issue and the consequences of getting it wrong. We recommend that a human resources director, compliance officer, or another experienced manager handle all workplace accommodation requests.

When an employee makes a request for a reasonable religious accommodation, engage in an interactive process with the employee, just as you would for a disability-related accommodation request. The employee may suggest numerous workable solutions. For example, in a non-assembly-line setting, some workers may be able to pray at their work stations and make up that time by coming in early or staying late. Or, perhaps you can schedule Muslim workers so that they are not at work at sunrise or sundown so that you need not accommodate the changing time of their prayer breaks. The point is to talk it through with the requesting employees, get their input, and explore possible options.

If you have concerns about whether you can reasonably accommodate prayer breaks or another religious accommodation, consider the true impact that the proposed accommodations will have on your business. Don’t make assumptions or come to hasty conclusions because you don’t want to deal with it. Instead, if you believe that an accommodation will impose more than a small cost or burden on your operation, be prepared to back it up with actual numbers and direct consequences before denying the accommodation request. As with other employment decisions, be prepared to defend your decision with well-documented analysis.

Finally, be sure that managers and supervisors know not to retaliate against Muslim workers or others who have requested a religious accommodation. The wrong decision by a front-line supervisor may undo all of your accommodation efforts when it results in a retaliation claim.