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Sherman & Howard’s L&E Team Prevails in EEOC Pattern or Practice Trial for JBS USA

On September 24, 2018, a decade after a group of more than 100 Muslim employees walked off the job in protest, the United States District Court for the District of Colorado granted judgment in favor of Sherman & Howard client JBS USA and against the Equal Employment Opportunity Commission (EEOC).  The judgment ended Phase I of a lawsuit in which the EEOC alleged JBS engaged in a pattern or practice of: (1) unlawfully denying Muslim employees reasonable religious accommodations; (2) disciplining employees on the basis of their race, national origin, and religion during Ramadan 2008; and (3) retaliating against a group of black, Somali, Muslim employees for engaging in protected action in opposition to alleged discrimination during Ramadan 2008.

After a 4-week bench trial, the Court found the EEOC had not proven any of its claims.  The Court recognized that JBS “was faced with a complex, evolving situation” in 2008 when hundreds of Muslim employees were demanding changes to break policies and break times to accommodate prayer and fasting during the Islamic holy month of Ramadan.  The Court applauded JBS’s efforts to find a way to accommodate the employees’ need to pray and break their fast even when faced with “a potentially serious counter-demonstration” by the non-Muslim employees.  The Court rejected the EEOC’s arguments that JBS was biased against Muslim, black, Somali employees and found that actions taken by JBS management were motivated by legitimate concerns regarding work stoppages and other violations of company policy.

The Court’s decision in Phase I included important rulings on religious accommodation claims, such as whether a “freestanding” religious accommodation claim is viable under the law.  The Court agreed with JBS that such a claim is not supported by the law.  Thus, an employee cannot sue his employer solely for failing to provide a religious accommodation; rather, the employee must also show that the employer took an adverse employment action against him related to a request or need for a religious accommodation.

The outcome of Phase I means that hundreds of individual employees who have intervened in the lawsuit will not receive the benefit of a “presumption” of discrimination that they would have received in Phase II of the litigation had the EEOC prevailed on its pattern or practice claims.  Thus, in Phase II, each individual employee must prove that JBS failed to accommodate, discriminated against, and/or retaliated against, him or her.  Sherman & Howard’s team – Matt Morrison, Kelly Robinson and Heather Vickles  – will continue to defend JBS in Phase II, from discovery through jury trial, if necessary, with the same vigor that led to victory in Phase I.

This is the second trial victory Sherman & Howard’s Labor & Employment team has achieved for JBS on similar pattern or practice claims.  In a virtually identical case brought by the EEOC in the United States District Court for the District of Nebraska, the Court entered judgment in JBS’s favor after two weeks of a Phase I trial to the Court that was scheduled to last four weeks.  The Nebraska Court granted JBS’s half-time motion, agreeing that the Company had proved its defense that the religious accommodations sought by the EEOC were not required under the law because they would have imposed an undue hardship on coworkers as well as on JBS’s business operations.  All claims in the Nebraska case, including hundreds of individual intervenors’ claims addressed in Phase II, were ultimately dismissed.

Equal Employment Opportunity Commission v. JBS USA, LLC, 10-cv-02103-PAB-KLM (D. Colo. Sept. 24, 2018).