I’ve commented a good deal in the past about religious accommodations for Muslims, so I thought I’d blog about an interesting opinion in Osman v. JFC Inc., decided yesterday by the Minnesota Court of Appeals.
A legal note: There are two major religious accommodation doctrines that deal with employment. The first is a statutory one created by Congress and by many state legislatures. Federal antidiscrimination statutes (and many of their state analogs) require employers to “reasonably accommodate” their employees’ religious objections to generally applicable employment rules, so long as such accommodation doesn’t impose a more than de minimis cost on the employer. Requests for time off for religiously commanded observance have long been common under these statutes; whether such requests need to be accommodated depends on how costly it would be for the employer to accommodate them. Such requests usually involve days off, for instance for observant Orthodox Jews or Sabbatarian Christians, but hours or minutes off for prayer is in principle no different. One may support or oppose such accommodation requirements, but Congress has chosen to implement them. The Osman case does not directly involve these statutory schemes.
The second is a constitutional one recognized under the Free Exercise Clause by the U.S. Supreme Court (and preserved even after Employment Division v. Smith). State law generally provides unemployment benefits for employees who have been laid off or quit for good reasons, but not for ones who have quit without good reason or who have been fired for misconduct. The Court has held that, in such circumstances, state law must also provide unemployment benefits to people who quit or were fired because their felt religious beliefs kept them from complying with certain job duties. Denial of unemployment benefits, the Court has held, would involve undue governmental pressure on people to violate their religious beliefs. And this is so entirely regardless of whether the employer’s firing violated the statutory reasonable religious accommodation requirements I mentioned in the preceding paragraph. Osman involves this Free Exercise Clause doctrine (which I think is probably a mistaken interpretation of the Free Exercise Clause, but which has been firmly established in U.S. constitutional law for nearly 50 years).
In any case, here’s a longish excerpt from the case:
[Facts:] Relators are 22 former employees of Gold’n Plump Poultry, Inc. (GNP)…. GNP operates a large poultry-processing facility in Cold Spring, Minnesota, that employs approximately 550 workers and operates 24 hours a day. The facility utilizes a system of [mostly manual] production lines that continuously processes live poultry into packaged products….
A significant percentage of the night-shift employees at the facility, including relators, are Somali Muslims whose faith requires them to perform five daily prayers, including an early morning prayer called Fajr. The window of time to perform Fajr is set by the sun’s position in the sky, which changes on a daily basis.
GNP has struggled to accommodate Fajr prayer time because its production schedule is strictly regulated by the federal government. Shifts at the facility start at staggered intervals, with each processing area coming “online” as the poultry proceeds down the production line. Because the poultry continuously moves down the production line, an employee’s absence from a processing area for prayer observance can significantly disrupt production, leading to poor product quality and revenue loss. GNP cannot increase the rate of production to compensate for time lost because the federal government has placed limitations on the facility’s processing speed.
Until 2002, all night-shift employees received one 15-minute break at 2:00 a.m. and a 30-minute lunch break at 4:00 a.m. The window of time to perform Fajr often coincided with the night-shift employees’ lunch break, but during certain times of the year, it conflicted with production time. In 2002, GNP implemented a floating break program at the facility, in part to accommodate some of its Muslim employees. The program allowed a limited number of employees who worked off of the production line to take breaks when they desired, rather than during the regularly scheduled break time. Eligible employees were required to apply for the program and identify a desired time for prayer. Most relators who applied attached prayer schedules from www.Islamicfinder.org, a website that identifies the appropriate time for daily Fajr as between dawn and sunrise. A waiting list was created for the limited number of positions for which a floating break was possible. All but two of the relators applied for the program, but many of them waited several months after initial employment before doing so. The vast majority that applied were accepted into the program after a short time on the waiting list. Relators who received a floating break prayed together.
In October 2006, several current and former employees of the facility brought a federal class action lawsuit against GNP on behalf of all Somali Muslim employees, alleging, among other things, that GNP had violated state and federal laws by failing to accommodate their need to pray. On August 27, 2008, after extensive mediated negotiations between the parties, and consultation with local Somali community leaders, a tentative settlement agreement was reached. As part of the settlement, GNP agreed to alter its break schedule for all night-shift employees, replacing the 15-minute break with two 10-minute breaks. The second 10-minute break would be scheduled to occur between dawn and sunrise, the prayer window for Fajr identified by the Islamicfinder website. Shortly thereafter, the federal district court preliminarily approved the settlement.
GNP decided not to wait for final federal district court approval of the settlement before implementing the new break policy because Ramadan, the Muslim holy month, would begin on September 1, 2008. Shortly after the settlement was reached, GNP supervisors met with employees to describe the new break policy, which would begin on September 2.
On September 2, dawn occurred at 5:16 a.m. and sunrise at 6:40 a.m. The break for Fajr was scheduled to begin between 6:20 a.m. and 6:33 a.m., depending on the employee’s position on the production line. Rather than wait for the scheduled break, relators left their work stations en mass at 5:30 a.m. to pray. Relators received two-day suspensions and 90 days of probation as a consequence for leaving their work areas without permission. GNP also required them to sign a “Corrective Action Notice,” agreeing to abide by the company’s break policy before they could return to work. Upon arriving at the facility on September 5, 2008, relators refused to sign the notices and claimed that GNP was terminating their employment. GNP supervisors denied that the employees were being fired. Relators declined to agree to the break policy and were escorted from the facility.
Relators applied for unemployment benefits with the Department of Employment and Economic Development (DEED), and an evidentiary hearing was held before an unemployment law judge (ULJ) to determine their eligibility.
At the hearing, relators argued that they were eligible to receive unemployment benefits because they were discharged for refusing to accept unreasonable changes to their break schedule that conflicted with their religious beliefs. Specifically, relators testified that they refused to adhere to GNP’s new break schedule because the timing of the second break did not coincide with the appropriate time for Fajr. According to relators, Fajr must be performed between dawn and 45 minutes after dawn. Relators claimed that they left their work areas to pray on September 2, 2008, because the prayer schedules they received from their local mosque, the Islamic Center of St. Cloud (ICSC), indicated that Fajr was to be performed at 5:30 a.m. that day.
Relators also offered the opinions of Mohamed Nuh, the imam of ICSC, and Hassan Mohamud, an imam and professor of Islamic law at William Mitchell College of Law. Nuh testified that, based on his interpretation of the Koran and the teachings of the Prophet Mohammed, Fajr must be performed within “30 to 45 minutes” after dawn, and that those who fail to perform the prayer within this time period will be punished. Nuh also claimed that he advised members of his congregation, many of whom were GNP workers, to adopt this practice. However, Nuh was unable to identify any Islamic scripture or teaching that specifically indicates that Fajr must be performed within 45 minutes of dawn, and he later admitted that the 45-minute window was only “an estimate” or “reference point” for the generally accepted time. Similarly, Mohamud opined that the “ideal” time for Fajr “is near the beginning of the prayer time period,” which he claimed was at 5:30 a.m. on September 2, 2008. But Mohamud did not mention a 45-minute window, and he also stated that Fajr can be performed at any point “after dawn but before sunrise.”
GNP challenged relators’ eligibility for unemployment benefits, claiming that relators were not discharged from their employment, but quit without good reason. GNP argued that relators did not have good reason to quit because their purported beliefs that Fajr must be performed within 45 minutes of dawn were not sincerely held. GNP noted that many relators waited several weeks or months after being hired to apply for the floating break program, and at least two of them never bothered to apply. GNP also offered testimony from relators’ supervisors and a human resources supervisor who testified that relators accepted into the program did not consistently take their breaks during the 45-minute prayer window. Collectively, these witnesses testified and produced business records indicating that during the last two weeks of August 2008, relators who received floating breaks could not have prayed during the 45-minute window because they took their paid 15-minute floating break and unpaid 30-minute lunch break before dawn. The witnesses further testified that when relators left their areas without permission to pray on September 2, 2008, they were “laughing and having a good time” as they walked down the hallway outside the processing area. Some relators also “smirk[ed]” and “roll[ed] their eyes” during disciplinary meetings. One relator was overheard stating that relators “were all going to walk off the line at 5:35 in the morning and they were going to get paid for it.”
GNP also offered testimony from Ahmad Ahmad, an assistant professor of Islamic Studies at the University of California, Santa Barbara. Ahmad testified that some Islamic religious experts recommend that Muslims perform Fajr shortly after dawn, but it is not mandatory to do so.
After the hearing, the ULJ found that relators were ineligible to receive benefits because they quit their employment without good reason. The ULJ specifically found that relators’ religious beliefs did not constitute good reason to quit because GNP “provided [relators] with a reasonable accommodation for Fajr prayer” by establishing a second break period that was scheduled to occur between dawn and sunrise. The ULJ also rejected relators’ testimony that they believed Fajr could only be performed within the first 45 minutes after dawn because (1) “[t]here [was] a lack of evidence that [relators] either consistently said Fajr prayer [during that time] or informed GNP of their belief”; (2) relators’ expert witnesses did not state that Fajr must be performed during the exact prayer window identified by relators; and (3) a prayer window between dawn and sunrise was acceptable to all other Muslim GNP employees, many of whom attended the same mosque….
[Legal Analysis:] The state and federal constitutions protect the right to free exercise of religion…. The United States Supreme Court has held that a state cannot deny unemployment benefits to applicants who were forced to choose between their religious beliefs and employment because such a denial violates the Free Exercise Clause of the First Amendment. See, e.g., Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829, 834-35 (1989) (holding that applicant was not disqualified from receiving unemployment benefits when he refused position that would have required him to work on Sundays, which was contrary to his religious beliefs); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 139-41 (1987) (holding that states refusal to award unemployment benefits to applicant discharged for refusing to work on Sabbath violated Free Exercise Clause).
But in order to qualify for unemployment benefits under a free-exercise theory, an applicant who quits employment must demonstrate that continuing in the employment would have burdened the applicant’s sincerely held religious beliefs. The sincerity of a religious belief is a quintessential fact question that often hinges on credibility and whether the applicant has been consistent in observing or honoring the belief.
Here, the ULJ [unemployment law judge] concluded that relators [i.e., the employees] did not have a sincere belief that Fajr could only be performed within the first 45 minutes after dawn because (1) relators did not consistently perform Fajr within the 45-minute prayer window or inform GNP [the employer, Gold’n Plump Poultry, Inc.] of their belief before quitting; (2) none of the religious experts unequivocally testified that Fajr must be performed within that time period; (3) other Muslim workers who attended the same mosque as relators and were involved in the class-action settlement performed Fajr during the scheduled break time instead of leaving their work areas with relators to pray on September 2, 2008; and (4) relators were untruthful in testifying that they were unaware of the class-action lawsuit and never discussed leaving their work areas “en masse” on September 2, 2008.
Despite acknowledging that “[s]ome of the testimony elicited by GNP may be clear enough” to support the ULJ’s finding, relators challenge the determination that their beliefs are not sincerely held. Relators rely on their own testimony and the testimony of their religious experts. They also contend that those who testified on behalf of GNP lacked credibility and gave inconsistent answers to questions involving the timing of lunch and floating breaks. We agree that there was some conflicting testimony concerning the sincerity of relators’ beliefs. But this court defers to the ULJs resolution of conflicting testimony and assessment of credibility.
Because the finding that relators were not sincere in their beliefs was essentially a credibility determination, and because there is substantial evidence in the record to support the finding, the ULJ did not err in denying relators unemployment benefits.
Kazinski says:
It sounds like GNP did their best to accommodate the employees before the employees decided that they would not be accommodated. If the relators want to work somewhere where diversity and personal preference take precedent over making a profit, they should become self employed, or get government jobs.
December 30, 2009, 6:53 pmPeteP says:
What will society do when these people play their next card, refusing to work with or for ‘infidels’, IE non-Muslims ? Do we ‘reasonably accomodate’ them on THAT, too ?
Sound far-fetched ? Look only to the airports, where some muslim cabbies refuse to transport anyone with a dog, or anyone carrying alcohol.
What ever happened to ‘the good old days’ when one’s religion was one’s private business, pursued on one’s own time ?
December 30, 2009, 6:54 pmChris Travers says:
Islam has never held such a position. I highly recommend reading this paper (free registration required). It discusses Islamic and Islamist atitudes towards a lot of these things in a fairly neutral way. Interestingly they conclude that the image of “moderate Islam” doesn’t really correspond to anything….
December 30, 2009, 7:02 pmRichard Gould-Saltman says:
OK, the first and most important question: why are the Plaintiffs/Petitioners/Complainants/Real Parties in Interest/Appellants in Minnesota referred to as “relators”?
First three times through, I read it as “realtors”, and was wondering how bad the real estate market had gotten, such that the real estate sales industry of Cold Spring, en mass, was working in a chicken factory…
December 30, 2009, 7:02 pmJ. Aldridge says:
One of the many consequences of a legal system that gets simple constitutional provisions all wrong. Getting rid of unfounded judicial incorporation nonsense would be a great start.
December 30, 2009, 7:05 pmChris Travers says:
I agree. We can start with the “Imprison J. Aldridge for 20 years act of 2010″ and hope SCOTUS gets it right this time ;-)
December 30, 2009, 7:10 pmIdahonian says:
Sounds like this one may have been the correct decision…but man, it makes me nervous when judges weigh in on the “sincerity” of religious beliefs, particularly when they look at the factors this judge did. The fact that some members of a religion acted against the advice of clergy is evidence that members who complied with that advice didn’t have do so out of sincerely-held religious belief? I don’t know about that; perhaps in this case, but I can think of numerous examples where members of one faith do things very, very differently, but with absolute sincerity.
December 30, 2009, 7:12 pmKazinski says:
I think the key thing here is the GNP provided a reasonable accommodation to there religious beliefs, it very well may have been that if GNP was not flexible about break times at all, the verdict would have gone the other way. But at some point the courts have to decide what is reasonable, and that will often conflict with faith.
December 30, 2009, 7:28 pmChrisTS says:
Wait! Is this another drinking game thread? I’m trying to cut down.
December 30, 2009, 7:29 pmSuperSkeptic says:
This situation is absurd on so many levels. But this problem is inevitable as long as there are “religious accomodations.” You have to be able to tell if someone asserting that they are entitled to them actually is entitled to them. I think it’s more perverse because the more “religious” you are, the more ridiculous your beliefs obviously are; thus, the more ridiculous your (sincere) beliefs are, the more perks you get! Ass-backwards-ness. Where’s my flying-spaghetti-monster lunch hour? I believe! I believe!
What, not sincere enough?
December 30, 2009, 7:32 pmChrisTS says:
I’m shocked to find myself agreeing with Kazinski, but I think s/he is correct in this. How can any company operate if every individual’s interpretation of the dictates of her/his faith requires accommodation? I’m impressed by what appear to have been GNP’s efforts to make accomodations for a group of employees.
December 30, 2009, 7:33 pmDr. Patent says:
Sorry if this comes across as over simplified, but . . .
The original dispute was between JFC, Inc. and the Minnesota Department of Employment & Economic Development. JFC challenged the employees’ right to unemployment compensation. After the state agency decided that JFC was right, the employees appealed. Becuase they weren’t parties to the underlying case, they are in the case due to their relationship (benefit recipient) with the state agency. The term “relator” describes that situation. It’s somewhat archaic, I suppose, but it’s what we use.
December 30, 2009, 8:10 pmabcdefg says:
Re: calling them “relators” — because it wasn’t tried in district court. Someone who wants unemployment benefits petitions the state agency and gets heard by the ULJ, and then the first level of judicial review is through a certiorari appeal to the MN court of appeals.
December 30, 2009, 9:02 pmNI says:
It’s always seemed to me that if someone’s religion prevents them from doing the job they’ve been hired to do, they need to find another job. Shall an orthodox Jew who takes a job at a non-kosher deli and then complains about having to handle non-kosher meat be accommodated? What about the Christian who takes a job at Playboy and then complains that assisting with the production of porn is contrary to his/her beliefs?
December 30, 2009, 9:16 pmShelbyC says:
Sure. The question here is whether or not they can get unemployment benefits while they’re finding one.
December 30, 2009, 9:37 pmIdahonian says:
I agree that the problem seems inevitable. I can’t imagine being a judge & having to determine whether someone’s beliefs are: (a) religious; and (b) sincere.
Although I will point out that equating(sincer[ly] held) religious beliefs with the whole spaghetti-monster fad is precisely the reason why free exercise was (and is) protected by the Constitution…
December 30, 2009, 10:00 pmJoe says:
What ever happened to ‘the good old days’ when one’s religion was one’s private business, pursued on one’s own time ?
Tell that to all the Christian parents who insist their beliefs be accommodated vis-a-vis their children in public schools. Reference is made on how “Islam” is different here. Does this mean Orthodox Jews pursue their religion only on “their own time” or such? Are yarmulkes, e.g., only worn in private? The idea religion is somehow a part time thing that is only done in private might be your view of things, but “strange” sorts, including Christians, disagree.
After all, seminal cases in this area involved Christians.
December 30, 2009, 10:24 pmJoe says:
Where’s my flying-spaghetti-monster lunch hour?
Well, if you are in prison, you don’t need necessarily to believe in a God or FSM to argue that a certain diet is required for your religious beliefs. “Religion” is usually interpreted broadly as shown by those who received conscientious objector status. As to “more religious,” you can have fairly vanilla beliefs vis-a-vis some people, and still be religious. You can be a stickler for Jewish traditions, for instance, and be pretty liberal overall. Of course, the Constitution protects religion in particular, even if you think it’s stupid.
December 30, 2009, 10:28 pmChris Travers says:
Hint: It helps if you formally join the official worshippers of the Flying Spaghetti Monster (aka Chthulu).
December 30, 2009, 11:00 pmAnatid says:
R’lyeh ftagn! Ia! Ia!
The worshipers of Cthulhu would protest that the Great One bears little resemblance to the FSM other than that they both have tentacles. The FSM is not a creature from beyond the stars who rests in the deeps, waiting to rise and devour the earth, eating the lucky believers first so they aren’t around for the suffering.
December 30, 2009, 11:29 pmtheobromophile says:
Joe: what accommodations do Christians ask for in schools that are akin to this?
Beyond that issue: when I read the facts, it just seemed (as one commenter pointed out above) downright strange for someone to take on a job like that if their religion would make it difficult to do their job properly; moreover, the bad faith in walking off the assembly line is just disgusting.
“Reasonable accommodations” often works best in office jobs; a person can telecommute, write a memo a few minutes earlier or later, or otherwise rearrange his schedule to meet the demands of his religious practises. When the issue turns to either factory jobs or something like teaching school, in which a person needs to be physically present and doing specific tasks throughout the entire workday, it quickly becomes impossible to accommodate someone’s religion. Unfortunately, some of our laws seem to be written with only the former type of job in mind.
December 31, 2009, 12:08 amDavid Nieporent says:
While I agree with you, note that the law requires reasonable accommodations only. Also, while they had previously sued over religious accommodations, this action here was about getting unemployment benefits, not getting accommodations.
December 31, 2009, 12:20 amDavid Nieporent says:
Yes, as long as you’re in the majority and so the schedule is already designed around your religion so that you can pursue it on your own time, that’s great. It’s much easier to do religion on your own time when you don’t have to work on Sundays and you automatically get holidays like Good Friday and Christmas off without having to make special arrangements.
December 31, 2009, 12:23 amreadery says:
In religions like Judiasm and Islam, the folks who spend all their days studying tend to have special rules for the righteous, strictures to show their special devotion that the slackers who merely work for a living have a hard time abiding by. A common such stricture is the idea that the righteous perform their obligations at the first possible opportunity and don’t wait until the last minute. Thus, it’s not surprising if the earlier part of the period would be preferred. As religion evolves, special devotions done only by the especially pious sometimes turn into norms.
I would think that people who work for a living would generally have to accept that there are certain limitations inherent in being a religious person who works for a living, one of them being that one’s often lucky to be able to get a prayer in during the requisite period at all, and doing it at the super-optimal time is often simply not possible.
But that said, I’m not at all sure the Minnesota courts made the right call here, although I don’t know what evidence there was that these folks weren’t generally among the super-pious in their prayers. I would say that a custom of the righteous praying early would seem extremely plausible, and extra devotion evolving into a mandate over time is common in religion. Thus, these folks may well be entitled to unemployment compensation. It isn’t the job the state to determine whether a religious practice is required or not.
There are many analogies in Judiasm; it would be like saying that the people who keep Glatt kosher or wait 72 minutes after sunset for the sabbath to end are wrong and insincere because there’s no “real” requirement to be that strict and other people in the religion don’t do it. It’s not the job of the State to make calls like that. Obviously if a person was videotaped eating pork at the local barbeque on Saturday the issue of sincerity would be different. But extra pieties of these sorts are common, and they could well be sincerely held.
December 31, 2009, 12:34 amreadery says:
There were a lot of Jews in the United States who wouldn’t work on the Sabbath in an era where everyone had to work on the Sabbath. Many went from job to job, working 6 days at a time, i.e starting Sunday and working until they were fired. What is one to do? One has to earn a living, and one has to observe the Sabbath. Starting a business is not as easy as it sounds for a person who is poor and doesn’t necessarily know the language or the culture or or a large number of people or how one goes about doing things. It is not an easy dilemma. It may be that the people involved in this particular case weren’t sincere about what they were doing, I have no knowledge of the facts. But there certainly have been plenty of people who have been sincere and have faced very difficult dilemmas. Surviving in a hostile society while maintaining religious strictures is not an easy situation.
December 31, 2009, 12:47 amyankee says:
Those would be the days when people demanded that their religion’s moral and theological beliefs be taught in the public schools, commerce on the Christian Sabbath was significantly restricted, and voters demanded politicians who would bloviate endlessly about their personal piety?
Oh, wait …
December 31, 2009, 1:25 amzoltan says:
No matter how Christian, Jewish, or Muslim you are, you are not getting your favored holidays off when it comes to certain jobs: hotel and restaurant workers, fire and paramedic jobs, police and security, etc. So while your lame, cush office jobs will usually give time off with a Christian bias, our country’s service-oriented industries will not. Obviously those of the non-Christian religious sort are put out by either of those choices.
December 31, 2009, 2:06 amTracy W says:
Readery – if the state says that people are entitled to time off to pursue their sincerely-held religious beliefs, but not for other reasons such as a sincerely-held desire to lounge around watching TV, then the state does wound up having the job of determining if a religious practice is required or not. In this case, the state called on a variety of evidence – including not merely testimony from religious experts but the behaviour of the relators earlier on.
PeteP – what are you talking about? The relators lost the court case. I think it’s fairly clear what society will do in the hypothetical case of some people refusing to work with anyone or for anyone not of their religion, as Eugene Volokh says, the requirement is to “reasonably accommodate”, not “accommodate at all costs”.
December 31, 2009, 9:17 amArthurKirkland says:
Next thing you know, some people will rely on these Muslims’ arguments and assert that an employer in the business of selling to pharmacy customers can not expect an employee to handle (let alone sell) condoms or morning-after pills or pregnancy tests.
December 31, 2009, 11:15 amLaura(southernxyl) says:
It looks to me like this was not a situation that could not be accomodated, and the employer bent over backwards to do just that. If the relators truly just wanted to observe their religion, they could have done so. The complaints about the 45 minutes were bogus and were shown to be bogus. This isn’t about religion not being accomodated, or a factory not being able to accomomdate Muslims, it’s about a bunch of people bound and determine to cause trouble. Probably somebody lied to them about how you can work the system and be paid unemployment to sit on your butt.
December 31, 2009, 11:40 amADF Alliance Alert » MN: Fired Muslim workers denied unemployment benefits says:
[...] Eugene Volokh: An Interesting Religious Accommodation Case [...]
December 31, 2009, 11:53 amAndrew M says:
IANAL, but I will have to agree with Laura(southernxyl); this looks like a case where a group of employees was dead-set on causing trouble. Had all relators (I, too, initially read ‘realtors’) joined the flex break program and had observed the 45 minute ‘rule’ in the past, they would have a much stronger case, but that obviously didn’t happen. It seems the employer bent over backwards to accomodate these employees, even though they took a job that causes issues with their beliefs, and yet they still refused to be accomodated.
December 31, 2009, 12:08 pmChris Travers says:
In general I tend to agree. However, having lived in a Muslim-majority country (Indonesia) I think there are some other things going on as well.
Indonesia officially has a secular government, and officially recognizes Protestantism, Catholicism, Hinduism, and Buddhism to be equal under the law to Islam. However, once you are there for a bit, the official equality of religion in most parts of the country is shown to be problematic. For example noise ordinances tend to be passed and enforced strictly against Christian churches, while the Mosques tend to make the calls to prayer loud enough so you can hear them no matter where you are. (Bali is the exception because that island has a small majority of Hindus and a large minority of Buddhists.)
Similarly television broadcasting will be interrupted and the call to prayer sent into all the homes that way as well.
The point here is that in typical Muslim-majority countries, there is a strong emphasis, enforced by by numerous measures, to get everyone to pause TOGETHER to pray at the various times of the day. So I don’t really doubt the sincerity of the Muslim workers here.
This being said, we do not live in a Muslim-majority country. We do not have these controls, and we do not want them. Our economies are not designed to pause for those moments when prayer is required. A willing immigrant to the United States must be willing to accept that we will not institute such controls just because a majority of workers in a factory demands it. I furthermore wonder if putting all the breaks on a schedule based on the sunrise would end up being a factor which could be considered later if hostile workplace harrassment were later to occur. So while I think that there might be inexpensive ways of accommodating the workers, it seems to me that arranging everyone’s schedule around the needs of the Muslims would be just as problematic and might also require violating other workplace laws (I know in my state, when lunch breaks can occur is also fairly well regulated and I went up against one former employer, which is a Fortune 500 company over the issue once).
To be honest, I would have been more comfortable if this had been decided on de minimis grounds.
December 31, 2009, 12:54 pmPeteP says:
David Nieporent says:
“Yes, as long as you’re in the majority and so the schedule is already designed around your religion so that you can pursue it on your own time, that’s great. It’s much easier to do religion on your own time when you don’t have to work on Sundays and you automatically get holidays like Good Friday and Christmas off without having to make special arrangements.”
Nonsense.
First off – the ‘standard work week’ in this country, and in fact the world, in defined as ‘Monday through Friday’, during daylight hours often approximating 9 – 5 local time etc. This is not, IMO, an ‘artifact of religion’. It is commonplace throughout the world, regardless of local religious dominance.
Second – many jobs require different hours from the above for many different reasons, world-wide, also not indicating any ‘religious bias’.
Third – FYI, christianity does not require any ‘no work today’ strictions regarding any given day, such as those you mention. Judaism does, of course, on their Saturday ‘sabbath’, for those that follow it that strictly.
Fourth – Islam ( if followed to this level ) is bizarrely extreme in its requirements, encapsulating not only ‘special holy days’, but certain times of day, five times every day, replete with rituals ( foot washing, communal bowing etc ) that can only be acquiesced to and fulfilled, in realistic terms, by a complete dedicatino of all day,e very day, to that religion. This level of imposition on everyone else is far far different, and more of an imposition on non-muslim society and workplaces than ‘jews not working on saturday’, or even ‘christians not working on christmas or on Sundays’ ( although there is no such striction in christianity ).
Further, the next steps in ‘accomodating muslims in society’ are easily extrapolated, without much imagination, to such things as ‘they shouldn’t be required to work for a jewish supervisor, or a female’, etc.
How about ‘muslims should not be required to work in any environment where music is heard ( they don’t like music ), or where ( even non-muslim ) women bare their faces, arms, or knees ? All very much ‘against islam’, you know.
Again I state – religion should be a private matter, followed in private, outside of the workplace. Period. And religious activities should be scheduled around work, not the other way around. That is the ONLY way that ALL religions are equally respected in the workplace.
Of course, one need only look at the ‘Respect of religion’ propoganda put out by the OIC via the UN HRC to see how much ‘devout muslims’ are concerned with ‘respect of ALL religions’ – they are not. They want Islam, and ONLY ISLAM, held sacrosanct, and above all others, and even above secular concepts of ‘privacy’, ‘indivdual rights’, ‘freedom of speech’, etc.
As others have pointed out here, look to Muslim countreis to see their idea of ‘repect of religion’ – there IS NO SUCH THING in their philosophy – only respect of ( and submission by everyone to ) ISLAM.
We do not want that here, and should never tolerate it here. It is against our founding principles, and must remain so.
The workplace and public society MUST remain secular – anything else leads eventually to theocracy.
December 31, 2009, 1:59 pmR. Sherwood says:
PeteP,
I agree with almost everything, except many Christian denominations do require Sunday (or Saturday) off. That being said, most of those make exception for many jobs or circumstance; for the denominations with which I am familiar, you are required to attempt to find a job that allows you to keep the Sabbath holy, but if you cannot, then work where you can find work as idleness is also a sin.
December 31, 2009, 2:15 pmreadery says:
Been done before, often. Happens all the time. Hundred of local drug stores have been bought by chains over decades who’ve changed practices on issues like this, and large numbers of employees have quit or been fired on religious grounds for refusing to go along. Of course they’re entitled to unemployment compensation, and of course they’ve gotten it. How could anyone seriously argue the doctrine wouldn’t apply?
December 31, 2009, 4:02 pmChris Travers says:
So, why do so many states close their liquor stores on Sunday? Why that day instead of, say, Monday?
I would argue that Monday through Friday is due to folks trying to sync-up with the American work week. Our country has, after all, dominated the world economy for quite a while. Therefore we have to ask why here in the US, since everyone else could be following us?
December 31, 2009, 4:52 pmreadery says:
December 31, 2009, 6:10 pmChrisTS says:
PeteP:
This cultural knowledge is grounded in what? In most Mediterranean and South American societies, the work day is anything but 9-5. Nor is it simply Mon-Fri (in Mexico, this is referred to as the gringo-week).
Could you provide citations for your claim?
December 31, 2009, 6:53 pmChrisTS says:
I believe Arthur was being humorous.
December 31, 2009, 6:57 pmDavid Nieporent says:
Virtually every business, “service-oriented” or not, is closed on Christmas, public safety jobs being rare exceptions; moreover, when people do have to work on Christmas, they’re generally paid a large premium as compensation.
As for being “put out,” I’m not put out by the fact that it happens — just by the fact that people don’t realize it happens and then think other people’s religions get special treatment.
December 31, 2009, 8:45 pmBill Poser says:
I think that you’ll find that this is not true in many Muslim countries, where the holy day is Friday. In Saudi Arabia, for example, the work week is Saturday through Wednesday.
January 1, 2010, 1:16 amKyDave says:
A short answer should be “No”.
While there are several facts that would shed additional light (see conclusion), from the reading it seems clear that the employer was genuinely, actively and in good faith pursuing a means to provide reasonable accommodations. As Tracy W. points out, quoting Eugene Volokh, “the requirement is to ‘reasonably accommodate’, not ‘accommodate at all costs’.” I tend to agree that the sudden action of walking off the assembly line clearly demonstrates “bad faith”, as theobromophile says. Further, the ‘realtors’ (giggle – trying to be lighthearted and not overbearing) actions do seem to be more like “people trying to make trouble” and seeking to “work the system and be paid unemployment to sit on your butt” as previous posters surmised. The complaints do seem to be “bogus.”
GNP is a 24-hour operation (and presumably, 7-day: per zoltan and David Nieporent’s thread). Of particular import is the question of time-elapsed.
The Facts Excerpt states that the issues dates as far back as 2002, when GNP initially implemented accommodations – reasonable or otherwise (floating breaks). The negations of revisions in August 2008 (trading one 15-minute break for two-10 minute breaks – an additional 5 minutes of break time, btw) was in process of being implemented, based on preliminary agreement, when the employees – who had operated under the previous policy for six years – improperly left their work stations. The excerpt states that the employees were suspended and refused to sign paperwork and were then escorted out.
Regardless of their claim, it does not seem they were not discharged for “refusing to accept unreasonable changes to their break schedule that conflicted with their religious beliefs”. If they were indeed discharged (disputed by the company), it could be argued that they were released for A) walking off the line and B) refusal to sign documentation of such.
{Conclusion… finally}
It would be helpful to know a fuller history of GNP’s operations. Specifically, was the company 24/(7?) when these individuals were hired? If so, were they aware if it at the time, and that there may be a conflict with their prayer schedule? If they were aware of this conflict, were they told that the company would make accommodations subsequent to their hiring?
It would be one thing to be employed in a business that moves to become 24/7 and ‘forces’ employees to comply with the new operations schedule. Or, if during the interview, an applicant is told that the company is 24/7, but that arraignments would be made to allow them their prayer time; only to be reneged later by the company.
It would be quite another to take a job and then demand that the company changes to suit your religious observances. If you take a job, you take it as it is. If you don’t like the company or its products, customers, suppliers, practices, or operations… the obvious advice would be not to seek employment with that particular firm (well, duh).
January 1, 2010, 7:36 amJoseph Slater says:
I’ll second David Nieporent in his disagreement with PeteP. Beyond that, some of the comments above confuse the Title VII rule about what an employer has to do to accomodate an employee’s religious beliefs with the unemployment compensation rule(s) about what type of separation from employment will allow or bar unemployment benefits.
The Title VII rule about what an employer has to do for a religious accomodation is, essentially, undertake no more than a de minimus burden. Employers are required to do less to accomodate religious beliefs than they are to accomodate disabilities, for example.
Unemployment law is state law, so rules vary on what exactly qualifies or disqualifies an employee for unemployment compensation. I haven’t looked up the applicable Minn. state law. But for employees who are fired, unemployment benefits are often still available unless the employee has committed something like “serious” or “gross” misconduct.
So it would be very possible that both of the following things could be true in this type of case: (i) the employer could legally fire somebody (because accomodating his religious beliefs would be more than a de minimus burden); but also (ii) the employee would be entitled to get unemployment benefits because the employee’s conduct was not serious or gross misconduct.
I’m not saying that should be the result here, just saying we should keep the legal rules straight.
January 1, 2010, 11:43 amneurodoc says:
You thought he “was being humorous,” or just trying to be “humorous?”
I think ArthurKirkland was alluding to the efforts of some Christian health care providers to force their employers, and often the public in turn, to allow them to opt out of certain job duties. For example, pharmacists who for religious reasons want nothing to do with contraceptive products, especially for the unmarried, and would require the employer to have another pharmacist to on duty to dispense those products, e.g., Plan B, which must be started within a short window of time. And there are lawmakers, with the backing of the Bush Administration, who have tried to force hospitals, clinics, pharmacies, and other employers to accommodate these religious objectors.
January 1, 2010, 7:22 pmreadery says:
Judaism has some very similar rules, but one of the advantages of centuries of living in foreign cultures is a set of fine-tune interpretations that tend to ease or provide a way out of conflicts like this.
For example, Judaism has the exact same rule as this Islamic group does — the righteous pray at the first opportunity and don’t wait until the last minute. But there’s another rule — praying with a congregation (i.e. a minyan of 10) trumps praying at the maximally optimal time. So the pray-with-the-congregation rule provides cover for a situation just like this when “the congregation” has made a deal with the powers that be for prayer at a less than a maximally optimal time. (It also provides cover for people who just plain don’t want to get up super-early.)
There are various others. For example, there are rules that might run afoul of discrimination laws. There’s a rule that fine-dining food has to have been prepared at least in part by Jews — which might create problems for a kosher restaurant hiring employees. But over centuries Jews who lived in European countries defined the amount of required participation in “preparation” down to just turning on the stove. The problem is finessed by assigning the task to clergy. Every morning the kosher supervisor from the rabbinic committee, who is Jewish and who is exempt from the discrimination laws, starts the day by personally inspecting the stove before it is turned on, and then turns on the stove. That way, the whole problem is finessed — turning on the stove becomes part of the exempt clergy supervision task rather than one of the non-exempt cooking tasks, ensuring the rule is kept while the discriminaton laws are complied with. (The 7th Circuit issued a decision holding that the Salvation Army can require its thrift stores to be run by ministers. the opinion appears to give religions substantial deference in what tasks they assign to clergy, suggesting that requiring the stove to be turned on only by clergy in a kosher restaurant is legal.)
One difficulty with Islamic groups in America is that, coming from a world where they were the majority, they didn’t develop fine-tuning rules to finesse the most difficult sources of conflict when living as a minority. They may not have developed methods of legal reasoning to enable finessing conflicts relying on principles within the religion without appearing to simply cave in to the outside society. Jews have had conflicts with non-Jewish employers exactly like this for centuries, and making the communal-prayer rule trump the optimal time rule provides a way out of such conflicts. But the religious-law legal reasoning never mentions such things. The reasoning focuses on the role of the community in Judaism and its special importance in prayer.
January 3, 2010, 1:51 amreadery says:
joseph Slater wrote:
The role of the Free Exercise Clause becomes clearer when one adds the additional facts that:
(1) “Gross” misconduct is as defined by the State, not as defined by the employer, so characterizing observing ones religion as gross misconduct under state law implicates the Free Exercise clause.
(2) Smith carved out an exception when the employee violates a generally applicable state law. But unlike the drug law at issue in Smith, work hours are matters of varying private contract and are not set by law. There is no generally applicable state law requiring employees to be at work at 5:30 in the morning or at any particular time. Further, under the 13th Amendment, there can be no generally applicable state law preventing employees from quitting, even if people might think quitting on the spot unethical. So the employees here didn’t violate any generally applicable state law. And since they didn’t, the generally applicable law principle Smith announced simply doesn’t apply.
January 3, 2010, 9:40 am