Employment Law Daily JBS wins Phase I trial in EEOC suit over Muslim prayer breaks
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Thursday, September 27, 2018

JBS wins Phase I trial in EEOC suit over Muslim prayer breaks

By Lorene D. Park, J.D.

JBS’s practice of denying Muslim employees unscheduled prayer breaks would have been a reasonable accommodation of their religion and would not have posed an undue hardship, concluded a federal district court in Colorado, but the EEOC failed to show that the employees who were disciplined for unauthorized prayer breaks were suspended, fired, or otherwise experienced a detriment in the terms and conditions of employment, so the religious accommodation claim failed. Judgment was also entered for JBS on the claim that it engaged in a pattern or practice of disparate discipline based on race, religion, and national origin during Ramadan 2008, because the Muslim employees’ walkout and resulting work stoppage constituted a legitimate reason for JBS’s actions and the EEOC failed to show pretext. The retaliation claim also failed in this Phase I trial of the bifurcated case (EEOC v. JBS USA, LLC dba JBS Swift & Co., September 24, 2018, Brimmer, P.).

This case arose from claims that Muslim employees at a JBS’ meat packing plant in Colorado were harassed, disparately disciplined, and were denied breaks to pray as required by their religion. The EEOC filed suit under Title VII and three groups of intervening plaintiffs joined. The case now involves over 100 individual plaintiffs.

Bifurcated case. In August 2011, the court granted in part the EEOC’s motion to bifurcate the trial. Phase I addressed pattern-or-practice claims that JBS denied religious accommodations, discriminatory disciplined employees; and retaliated against those who opposed discrimination during Ramadan 2008. In Phase II, the EEOC may present its pattern-or-practice claim for hostile work environment and pursue individual damages. The intervenors’ separate claims would also be addressed in Phase II.

Phase I trial. In the Phase I trial, the court heard from 28 aggrieved individuals for whom the EEOC sought relief. Although a few of the aggrieved individuals were hired by JBS at the end of 2007, most were hired in 2008. They were all from Somalia, their race is black, and they follow Sunni Islam. At trial, the EEOC presented its claims that JBS engaged in a pattern or practice of: (1) denying Muslim employees reasonable religious accommodations to pray and break their Ramadan fast from December 2007 through July 2011; (2) disciplining employees on the basis of their race (black), national origin (Somali), and religion (Muslim) during Ramadan 2008; and (3) retaliating against a group of black, Muslim, Somali employees for opposing discrimination during Ramadan 2008. Below are the court’s findings and fact and conclusions of law.

Plant process. During the meat packaging process, beef moves on a chain through the plant from the slaughter area, to fabrication (where it is cut and processed), and then packaging. It moves at a variable speed, up to a maximum set by the Department of Agriculture, but JBS must correlate chain speeds in the various assembly line areas, so the meat is shipped before spoiling. The number of employees on each line varies, and each worker performs specific tasks. Proper crewing is important for safety and quality; when the speed increases, crew size must increase.

Breaks. Under the collective bargaining agreement, employees got two scheduled breaks during each shift. Those in the slaughter area stop placing beef on the chain to create a 15-minute gap for rest breaks or a 30-minute gap for meals. Employees began breaks when the gap reached them, and JBS staggered breaks to avoid leaving beef unattended. The timing varied day to day but generally for B shift the first rest break was sometime between 5pm and 6:30pm and meal break was between 8pm and 9:30pm. JBS also allowed employees to ask supervisors if they could leave the line for an unscheduled break, but only to get a drink of water or for restroom emergencies. Supervisors had a great deal of discretion and handled requests differently.

Muslim prayers and fasting. Muslims customarily pray five times per day. The Fajr prayer takes place in the morning, the Dhuhr prayer near noon, the Asr prayer in the afternoon, the Maghrib prayer at sunset, and the Isha prayer in the evening. Generally, Somali Muslim employees believe that willfully neglecting or missing prayers is a sin against God, for which God determines the consequences. They also believed that, before prayer, it was necessary to be “clean” and they performed a cleansing ritual called an ablution. JBS had no policy against praying in the plant before work or during a scheduled break, and Muslim employees often said prayers in the locker rooms and performed ablution in adjoining restrooms. Employees differed in how long they took to perform each prayer but most agreed that, even with ablution, the sunset prayer took no more than 15 minutes from the time they left their lines to the time they returned. In addition to prayer, the Islamic faith required the Muslim employees to fast from dawn until sunset during their holy month of Ramadan. At sunset, they beak their fast with food or water.

No-prayer break policy. Until at least Ramadan 2009, a request for a prayer break was not allowed by unwritten policy enforced by management. Supervisors were told they could not grant breaks to pray. Many Muslim employees requested a restroom break when they needed to pray, and some supervisors actually advised them to do that. JBS enforced its no-prayer break policy by disciplining Muslim employees who were caught praying while taking unauthorized breaks, even when they had received permission for a restroom break. Though enforcement was sporadic, trial testimony established that supervisors often followed Muslim employees to the restroom and would write them up if they were praying. There was also testimony that Muslim employees were harassed, and others sometimes intentionally interfered with their prayers.

Ramadan 2008. During Ramadan 2008, Maghrib prayer times ranged from 7:30 p.m. on September 1 to 6:42 p.m. on September 30. The events of the first week played a central role at trial. Monday the plant was closed for Labor Day. Tuesday, around 10 Somali Muslim employees were issued written discipline for leaving their lines to pray and break their fast. After the B shift, some of them met in the cafeteria to discuss how to seek a prayer accommodation. Thereafter, between 40 and 100 of them approached a supervisor to request a 7:30pm break during Ramadan. He said he lacked the authority to grant that and they should go to HR.

On Wednesday September 3, the supervisor emailed the general manager and HR director claiming there had been an “uprising” of Somalis and they wanted a break at 7:30. That same day, one hour before the start of B shift, around 200 Somali Muslim employees gathered at the parking lot to ask that the meal break be moved to coincide with the time they needed to break their fast and pray. They were asked to form a committee to speak for them and they selected seven representatives. The committee asked that meal break be moved from 9:15 p.m. to 7:30 p.m. to accommodate their religion. JBS allowed the change that day while it considered alternatives. The change was allowed again on September 4, but many non-Muslim workers were angry—some refused to leave the line during the break and many left at 9:15, the normal break time, slowing production. They were not disciplined for the unauthorized work stoppage.

Walkout. On September 5, around 200 non-Muslim employees gathered outside the plant before the B shift and refused to work until the meal break was moved to its normal time. After meeting with both groups of employees, JBS decided to move the meal break to 8:00. Not everyone was informed, and some Muslim employees left the line early. At the meal break, both Muslim and non-Muslim employees in the cafeteria were upset, there was shouting and managers tried to calm things down. A large group of Muslim employees left the plant in protest and gathered in the parking lot. The police were called and eventually they left before the end of the shift.

Discipline. JBS considered the cafeteria walk out to be a work stoppage breaching the CBA. It suspended the Muslim employees who did not return. On Tuesday September 9, JBS told the committee and union reps to tell employees to return that afternoon or they would be terminated; not all workers were notified. In total, 96 Muslim employees were fired. Thereafter, managers continued to monitor restrooms and discipline employees found praying on unscheduled breaks. However, HR developed 2009 guidelines that stated employees could request prayer breaks during Ramadan, though restroom breaks were given priority over prayer breaks.

Phase I claims. Having made these findings of fact, the court turned to the Phase I claims. First, it rejected JBS’s argument that the EEOC brought a “freestanding” religious accommodation claim that was not tied to an adverse employment action. While the court agreed such a claim was not viable after EEOC v. Abercrombie & Fitch, it found no such claim here. Instead, the EEOC claimed that as part of its discriminatory pattern or practice, JBS denied reasonable prayer accommodations to Muslim employees by suspending and firing them.

Denied religious accommodations 2007-2011? The court next addressed whether JBS reasonably accommodated the employees’ religious practices. JBS claimed it was reasonable to allow them to pray inside the plant during scheduled breaks, allow extra breaks for prayer, and to move the meal times. To the court, JBS provided reasonable accommodations during only some of the time and not for the whole period from December 2007 until July 2011.

For one thing, scheduled breaks were a reasonable accommodation only when the breaks coordinated closely with Muslim prayer schedules. The court further explained that “prayer is considered particularly important during Ramadan, but the evidence did not show that the meal break ever corresponded with sunset during Ramadan 2009 or 2010. That said, JBS did provide a reasonable accommodation when it moved meal break to 7:30pm on September 3 and 4, 2008. That may not have accommodated every individual Muslim employee’s religious belief, but it was accepted by the Muslim committee on behalf of the plant’s Muslim employees and was, in the totality of circumstances, a reasonable accommodation. On the other hand, moving the meal break to 8pm for the rest of Ramadan 2008 was not a reasonable accommodation.

With respect to unscheduled breaks that were allowed on request for prayer during Ramadan 2009 and 2010, that may not have accommodated all Muslim employees, but was still a reasonable accommodation. Phase II would address individual plaintiffs claims that they were denied breaks in Ramadan 2009 and 2010.

EEOC’s proposed accommodations. The EEOC proposed three accommodations that it argued were reasonable and would not create an undue hardship for JBS: (1) allow unscheduled prayer breaks; (2) adjust schedule breaks to coincide with prayer times within the CBA’s parameters; or (3) a combination of the first two. The court found that each of those accommodations would be reasonable. The results were mixed, though, on whether they would pose an undue hardship.

Moving meal break would be undue hardship. With respect to moving the meal break to better coincide with sunset, JBS had the power under the CBA to set the meal break at 7:30 p.m. during Ramadan 2008 without having to offer an additional paid rest break to all employees. However, it argued this would be an undue hardship based on the impact that moving the meal break had on non-Muslim employees and the resulting unrest. It presented testimony that when meals occur early in a shift, employees get more tired and hungry by the end of the shift, and morale suffers. Based on this and other evidence, the court found that moving meal break to coincide with sunset would have constituted an undue hardship.

Allowing unscheduled breaks not an undue hardship. However, the evidence during the Phase I trial provided only speculative support for JBS’ proposition that the plant’s overall productivity would be reduced by allowing unscheduled prayer breaks or that doing so would otherwise create an undue hardship on JBS or non-praying coworkers.

Pattern of adverse action motivated by need for religious accommodation? The court next addressed whether the EEOC presented sufficient evidence showing that JBS’s actions were part of a discriminatory pattern or practice. With respect to discipline and termination of the employees who walked out on September 10, 2008, there was no question they suffered an adverse employment action, but the EEOC failed to show the actions were motivated by a desire to deny religious accommodations. To the contrary, the court found that the discipline was motivated by the significant work disruption caused by the walkout. On the other hand, JBS’s policy of prohibiting unscheduled breaks to pray and disciplining employees who used unscheduled breaks to pray was motivated by a desire to deny a religious accommodation. Even when some supervisors, in their discretion, granted Muslim employees a bathroom break, such employees were still subject to discipline if caught praying on that break.

No materially adverse action, so accommodation claim fails. Because the court had found that unscheduled prayer breaks were a reasonable accommodation and were not an undue hardship, the remaining question was whether the EEOC showed that any employees suffered materially adverse actions as a result of JBS’s policy of denying such breaks. Here, the EEOC presented evidence of numerous instances of employees being given verbal or written warnings for “unauthorized breaks” that may have been related to prayer, and personnel records indicated that further discipline could lead to termination. However, there was no evidence those employees were suspended or terminated as a result. Absent a detriment in compensation, terms, conditions, or privileges of employment, the EEOC had not proven that JBS’s policy constituted an unlawful pattern or practice of discrimination, so the court entered judgment for JBS on the Phase 1 pattern or practice claim of denial of religious accommodations.

Pattern or practice of discriminatory discipline during Ramadan 2008? The EEOC claimed JBS engaged in a pattern-or-practice of disciplining and firing black Somali Muslim employees more often than other employees during Ramadan 2008. While the court found that the statistical evidence, combined with other circumstantial evidence (e.g., targeting for discipline the Muslim employees’ use of unscheduled breaks to pray), was enough to infer a pattern or practice of discriminatory discipline based on race and religion, it did not suffice for national origin. In the court’s view, the weaker statistical correlation between discipline and Somali national origin was due to the employees’ other protected characteristics.

Furthermore, JBS had a nondiscriminatory explanation for the discipline imposed during Ramadan 2008; principally, the walkout and resulting disruption in work. While the EEOC argued that was pretext, the court found that the agency failed to carry its evidentiary burden and entered judgment for JBS on this claim too.

Pattern or practice of retaliation during Ramadan 2008? As to the third and final claim in the Phase I trial, the court found that the EEOC showed the Muslim employees engaged in protected activity in meeting with the supervisor and HR during Ramadan 2008. Also, for purposes of a retaliation claim, disciplinary action, suspension, discharge, and coworker hostility were all materially adverse actions. That said, the work stoppage presented a legitimate, non-retaliatory reason for the walkout-relate discipline and the EEOC failed to show that this was pretext. Temporal proximity alone was not enough. As such, judgment was entered for JBS.

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