Increase in number of Muslim employees has made compliance more complex

By Richard Voigt

Title VII of the Civil Rights Act of 1964 and the Connecticut Fair Employment Practices Act prohibit employment discrimination on the basis of religion and require that employers reasonably accommodate the religious beliefs of employees as long as such accommodation does not create an "undue hardship" for the employer. Historically, many of the cases alleging illegal religious discrimination have involved an employer's alleged failure to accommodate an employee's religious belief that he or she should not work on the Sabbath (a Saturday or a Sunday, depending on the religion).

The Celestica Class Action

As the number of Muslims employed by U.S. companies has increased, issues relating to workplace accommodations of employees have become more complicated. In 2009, a group of practicing Muslims at Celestica Corporation's Arden Hills, Minnesota, facility filed a class action claim alleging that their employer failed to accommodate their duty to pray five times each day.

As the duty was generally summarized by the court, Muslims must pray five times daily, with each prayer typically taking five to ten minutes. On Fridays, Muslims: or at least male Muslims: are expected to perform a midday prayer communally, which is accompanied by a sermon. Together, the prayer and sermon might take 30 minutes.

The times at which prayers are held during the day is based on the position of the sun. Therefore, in Northern latitudes (where the length of the day varies significantly with the seasons), the timing of prayers varies throughout the year: a schedule complicated by Daylight Saving Time.

Celestica improvised a new work schedule that it hoped would protect its productivity while providing time for Muslim prayer. The new schedule added 10 minutes to the first- and second-shift breaks, included a different break schedule for Daylight Saving Time, and permitted employees to take their Friday lunch break at any of three designated times. In addition, the company allowed employees to switch shifts for the purpose of accommodating their religious needs.

Following the implementation of this new schedule, several Muslim employees were disciplined or terminated for taking unauthorized breaks. They took those breaks because they did not think the new schedule adequately accommodated their religion and/or because the change from Daylight Saving Time to Standard Time made the new schedule incompatible with their required religious practice.

Ultimately, the class of Muslim employees in the Celestica case was not certified by the court, that is, the court did not allow the suit to be pursued as a class action. The reason was not that the plaintiffs didn't have a claim against their employer for failing to accommodate their religious beliefs. Rather, it was that the plaintiffs failed to satisfy the class action requirement of a "commonality of claims." In fact, each plaintiff presented a unique combination of factors bearing on the issue of reasonable accommodation and undue hardship to the employer. For example, there were differences among the employees regarding their job titles, shifts, and when they felt they were required to say prayers.

The court's ruling did, however, clearly allow for the possibility of certifying a class of Muslims whose claim involved a more uniform set of factors or for the possibility of claims brought by individual Muslim employees based on their unique circumstances.

The Hertz Class Action

In 2010, a non-Muslim employee of the Hertz Corporation sought certification of a class involving other non-Muslim workers in order to pursue a religious discrimination case against their employer. The class action was based on the claim that a benefit provided to the Muslim employees: one to three 15-minute paid prayer breaks per day (in addition to the regular paid breaks provided by the company): was not made available to non-Muslim employees. As calculated by the plaintiff, the amount of paid break time for Muslim employees on a yearly basis amounted to five weeks of extra pay.

Hertz contended that its accommodation of Muslim employees did not constitute religious discrimination against non-Muslim employees because it paid for all breaks taken by employees and because its accommodation of Muslims was an effort by Hertz to comply with its obligations under Title VII.

The plaintiff contended that since the regular breaks provided by the company were paid breaks, Hertz should have either required the Muslim employees to clock out while they were taking prayer breaks or, if the company was going to pay them for this time, non-Muslim employees should have also been allotted additional paid break time. At the time of this writing, a decision by the court was pending.

Implications for Employers

When it comes to arriving at a reasonable accommodation for religious beliefs, these two cases show that the dilemma facing employers may not always be as clear-cut as it might first appear. As noted by the court in the Celestica case, there is significant variation in the views of Muslims regarding how the prayer obligation can be satisfied. Consequently, there may be significant variation in the range of possible accommodations available in any one case.

As for discrimination against non-Muslim employees, the plaintiff in the Hertz case suggested that requiring the Muslim employees to clock out during prayer time could cure the alleged discrimination against non-Muslim employees. However, that approach could create problems when dealing with salaried, exempt employees.

What these cases suggest is that in dealing with issues of religious accommodation, employers must carefully think through the practical implications of any accommodations they're considering. It's important to keep in mind that employers are not required to provide the accommodation requested by the employee or even the most reasonable accommodation; they are only required to provide a reasonable accommodation. Although these cases find their original source in the beliefs associated with religions, they ultimately turn on very specific practical considerations relating to the workplace.

Richard Voigt is a partner in the law firm of McCarter & English in Hartford. He can be reached at rvoigt@mccarter.com.