Religious Accommodation and Undue Hardship: Striking the Balance for Illinois and Wisconsin Employers

Employers throughout the United States are increasingly faced with the issue of discrimination or harassment of its employees based upon the employees’ religion. According to statistics promulgated by the Equal Opportunity Employment Commission, there were 3,549 religious discrimination charges filed in the United States in 2014—more than double the number of charges filed in 1997. This issue was recently brought to the forefront by one manufacturing company in Wisconsin.

Decision at Issue

AccommodationAriens Manufacturing, a Brillion-based maker of snow blowers and lawn-mowers, has a long history of allowing prayer time for its Muslim employees. Prior to the company’s recent commitment to strictly enforcing its policies regarding employee breaks for all employees, the 53 Muslims employed at the headquarters plant were permitted to take two five-minute shift breaks to pray. These prayer breaks did not coincide with the scheduled breaks for the rest of the employees. In order to accommodate the off-schedule prayer breaks, non-Muslim employees would assume the job duties of the Muslim employees, which allowed the Muslim employees to leave the assembly line. According to the company, the unscheduled handing-off of job duties to other employees negatively impacted assembly lines and led to decreased efficiency.

As a result, the company issued a statement to its Muslim employees asking them to pray during scheduled breaks in designated prayer rooms, and informing them that the company’s manufacturing environment does not allow for unscheduled breaks in production. According to the company’s CEO, Dan Ariens, this does not actually amount to a change in company policy. Rather, the company is electing to enforce a policy that already exists, which allows all employees to take two ten minute breaks that are scheduled by the company. While the company believes the ten minute scheduled breaks will provide prayer time to those who want it, some of the Muslim employees are claiming the enforcement of the policy equates to religious discrimination.

Religion and Title VII

Religion is a protected classification under Title VII of the Civil Rights Act, which applies to employers in Illinois and Wisconsin. In addition, religion is a protected classification under the Illinois Human Rights Act. In Wisconsin, “creed” is a protected classification pursuant to the Wisconsin Fair Employment Act.[1] All of these require an employer to reasonably accommodate an employee’s religious observance or practice. However, if the accommodation requested places an undue hardship on the employer’s business, the accommodation will likely be determined to not be reasonable, and therefore, not required.

Under Title VII, an accommodation creates an undue hardship on an employer where the accommodation poses “more than de minimis” cost or burden.[2] Factors that may be relevant to making a determination of undue hardship include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need the particular accommodation. As to the last factor, the mere assumption that many more people will need the accommodation is not evidence of undue hardship.  The Equal Opportunity Employment Commission’s policy on religious discrimination explains that “[a]n accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

The United States Court of Appeals for the Seventh Circuit, which covers both Illinois and Wisconsin, has adopted the definition of reasonable accommodation set forth by the United States Supreme Court: “a reasonable accommodation of an employee’s religion is one that ‘eliminates the conflict between employment requirements and religious practices.’” The Seventh Circuit has further held that an employer reasonably accommodated an employee when it invited the employee to bid on other jobs within the company that did not interfere with the employee’s religious practice. This struck the Court “as a paradigm of reasonable accommodation.” Thus, when that employee refused to bid on jobs that would not have interfered with his religious practice, the Court held that the employee, not the employer, was responsible for the consequences.

What is Required of an Employer in Illinois and Wisconsin?

The key to avoiding many employment-based claims is open communication between the employer and the employees. Employers faced with potential religious discrimination claims must look at potential avenues to make a reasonable accommodation for its employees. However, an employer is not required to endure undue hardship in order to accommodate its employee. The trick is to find this balance and for the employer to understand its duties and obligations under the applicable law.

[1]  Pursuant to the Wisconsin Fair Employment Act, “ Creed” is defined as “a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.”

[2] Illinois law has specifically adopted the Title VII standard of undue hardship for purposes of religious discrimination claims. Wisconsin law has not defined undue hardship in the context of religious discrimination; however, Wisconsin courts have consistently looked to Title VII for guidance in interpreting and applying the Wisconsin Fair Employment Act.

This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

C. Douglas Moran| Employment, Litigation: Complex Commercial, Real Estate and Bankruptcy

Doug’s practice focuses on providing employers with advice and counsel in employment-related matters, and representing employers, corporations and banks in litigation, including complex litigation. If you need assistance with a related matter, contact Doug.