Disputes Over Prayer Breaks Reflect Changing Workforce

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By Madison Alder

Accommodating prayer breaks for Muslim-American workers has many employers looking for solutions, but this byproduct of the most recent shift in the demographic fabric of the U.S. is only the beginning.

Cargill, a beef-processing plant in Fort Morgan, Colo., is an example of an employer that’s facing some legal challenges because of the way it has handled prayer breaks. The Equal Employment Opportunity Commission found reasonable cause Aug. 9 that Cargill violated Title VII of the 1964 Civil Rights Act when it denied Muslim employees prayer breaks.

The dispute at Cargill is just one of several prayer break dispute cases in the U.S. Praying five times a day is one of the central tenets of Islam, and devout Muslim workers will typically ask their employers for breaks to accommodate those prayers.

“There are certainly more of these cases now than there have been historically,” Steven Collis, an attorney with Holland & Hart in Denver, told Bloomberg BNA. Collis is the chair of his firm’s nationwide religious institutions and First Amendment practice group. He isn’t involved in the Cargill case.

Collis said while he hasn’t seen a bump in the number of prayer break cases recently, he has seen more employers looking for guidance on religious accommodations in the workplace.

The number of Muslims in the U.S. has grown by about 1 million people in the past 10 years, the Pew Research Center reported in July. An estimated 3.35 million Muslim-Americans currently live in the U.S.

The U.S. workplace is rapidly evolving the same way it has at so many other points in the nation’s history with other cultural groups, Todd McFarland, associate general counsel for the Seventh-day Adventist Church, told Bloomberg BNA. Issues like accommodating prayer breaks are a “forerunner to where society is going,” he said.

Minnesota, Wisconsin, Ohio, and Colorado are among the many states where legal action has been taken in an attempt to resolve a prayer break dispute.

Combating workplace discrimination against Muslim workers and people of Middle Eastern descent is a priority in the EEOC’s strategic enforcement plan.

EEOC Supports Muslim Workers in Cargill

Cargill allegedly fired some 150 Somali-American Muslim employees in December 2015 after it denied them prayer breaks. According to the Council on American-Islamic Relations, which filed the charges with the EEOC, the workers were allowed prayer breaks for years before they were barred from praying at work. CAIR is an organization that advocates on the behalf of Muslim-Americans.

Although the EEOC’s finding of reasonable cause that Cargill violated Title VII of the Civil Rights Act of 1964 was welcomed by prayer break advocates, it is only one small step and not a formal finding by the federal anti-discrimination watchdog.

The reasonable cause finding means that the agency will now talk to the company and try to come to a mutual agreement. If an agreement can’t be reached, the EEOC will decide if it wants to pursue its own lawsuit against the company or leave the individuals to pursue the claim on their own.

“We are disappointed by, and disagree with, how the EEOC interprets what occurred at Fort Morgan in 2015,” Cargill said in a company statement Aug. 9. “The allegations made by CAIR are false.”

Avoiding Disputes With Communication

One of the most common issues Collis hears from employers involves worry that granting one or two prayer requests will “open the floodgates” to a multitude of requests and eventually will cause a burden to the company.

“It’s important to remember that you can’t worry about getting a lot of requests,” Collis said. “One or two requests is not yet 200.”

McFarland echoed Collis, saying it’s easier to accommodate a prayer break when only a handful of employees are making a request. But in the end, “it all comes down to working with employees and understanding what the problems are,” McFarland said.

The balance needs to be struck somewhere between productivity and respect for the “growing minority” in many of these organizations, McFarland said.

Sitting down with employees and working out a solution is a good first step, Collis said. A second thing to remember, he said, is to thoroughly document how that request is being accommodated.

“It should be an ongoing dialogue between the religious employees and the employer to find a balance that will work,” Collis said.

Similarly, Susan Gross Sholinsky, an attorney with Epstein Becker Green, told Bloomberg BNA in an email “an employer should not discount the actual discussion with the employee requesting the accommodation.”

Sholinsky, a member of her firm’s Employment, Labor & Workforce Management practice, suggested opening a conversation with employees to talk about anything from the reasons why they are unable to make the accommodation to alternate solutions.

“Communication is key,” Sholinksy said. “Never shut down (or take actions that appear to be shutting down) the discussion. Rather, be flexible, and endeavor to reach a solution that can work for both parties.”

Understanding Islamic Prayer

The difficulty for some employers is understanding how prayer breaks work.

“Companies assume that everyone wants to pray at once and that’s not the case,” Ellen Longfellow, an attorney with Minnesota CAIR, told Bloomberg BNA.

Prayer breaks are often flexible and can be completed over a certain period of time, meaning individual breaks can be staggered, she said. The only time the breaks can be tricky to accommodate is during a night shift when the breaks get closer together, Longfellow said, but for most shifts, there’s no problem at all.

Another issue employers seem to have a problem with, Longfellow said, is the fact that prayer breaks change time depending on the location and time of year—but “it’s not like it’s unpredictable.”

“Employers don’t have to be surprised,” she said. “They can sit down with employees and work it out.”

Pending Prayer Break Cases

CAIR has been involved in a number of other pending cases involving prayer breaks in the workplace.

The organization filed EEOC and NLRB charges in May 2016 on behalf of 15 Muslim workers in Wisconsin who were fired after their employer, Ariens Co., placed restrictions on prayer breaks at work.

CAIR also has a case against a hardware manufacturer pending with the Minnesota Department of Human Rights. In April 2016, the organization filed charges with the EEOC against Minnesota hardware company AmesburyTruth and a local staffing company, Doherty Staffing Solutions.

Longfellow said “it’s common” for her organization to work with individuals on prayer accommodation cases.

Longfellow said the organization stepped in on behalf of 21 Muslim workers who claimed they weren’t given appropriate religious accommodations, but the request missed the deadline and is now going through the process at the state level. CAIR recently filed an amendment to add Doherty Staffing Solutions, which matched many of the Muslim-American employees with the company, to the state lawsuit.

Longfellow said a common issue she sees with these disputes is a staffing agencies and employers arguing over who is responsible to meet the accommodation.

“My client never denied the employees the right to pray,” Kerry Middleton, an attorney with Littler Mendelson who is representing AmesburyTruth, told Bloomberg BNA.

The allegation by the workers is that there wasn’t enough involvement, Middleton said. “We provided reasonable accommodation,” he said.

Longfellow said she hoped the EEOC’s support of Cargill might signal a support for other prayer break cases, but it’s difficult to know for sure.

The EEOC dismissed charges CAIR Minnesota filed against UPS Mail Innovations and Doherty Staffing Solutions in February, she said. The shipping giant allegedly fired Muslim employees who wanted to pray during their break times. UPS had previously allowed its workers to pray during their breaks, according to CAIR.

Despite the EEOC’s dismissal of the charges, in June, CAIR filed a lawsuit in the U.S. District Court for the District of Minnesota against the UPS Mail Innovations and Doherty Staffing Solutions.

Doherty Staffing Solutions didn’t respond to Bloomberg BNA’s request for comment.

To contact the reporter on this story: Madison Alder in Washington at malder@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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