When a federal court recently awarded $240,000 to two Somalian-American Muslim truck drivers who were fired after refusing to haul alcohol, dramatic headlines echoed around the industry.
Many worried carriers called their lawyers.
"Some of my clients would ask 'What if I have Jewish or Hindu drivers who refuse to haul pork, or conservative Christian drivers who won't haul vibrators and condoms, or atheists who refuse to ship bibles?'" says Nicole Crawford, an attorney at Brooks, Pierce, McLendon, Humphrey & Leonard, LLP in Greensboro, North Carolina who has specialized in labor and employment issues for the last 12 years. "Where does it stop?"
The case involved two drivers at Star Transport, Inc. in Morton, Illinois who, in 2009, asked for an accommodation because delivering alcohol went against their religious beliefs. In 2012, after the Equal Employment Opportunity Commission (EEOC) and Star could not reach an agreement after months of negotiations, the federal agency filed a lawsuit.
Crawford and others suggest that the EEOC pursued action against Star because the carrier's actions were so blatant that they had no choice but to take them to court. "I think that this was like shooting fish in a barrel for the EEOC," says Crawford.
Attorney Rachel Atterberry, agrees. "What's really unusual is that the case was taken up by the EEOC They don't do that with every case that comes across their desk. In fact, very, very few." Atterberry, a partner at Freeborn & Peters LLP in Chicago, handles employment counseling as well as employment litigation before agencies like the EEOC. "The reason that this case garnered so much attention is because of the religion of the employees and the nature of the accommodation that some people viewed unfavorably… You saw a lot of backlash where people read the headline, 'EEOC Secured Victory For Muslims Who Won't Do Their Job.' It's not as simple as that, and I think the case has attracted attention, in part, because of these sort of headlines that were out there."
She notes that if a driver feels discriminated against because of religious beliefs he cannot go directly to court. Drivers are required to first contact the EEOC or an equivalent state agency and file charges against their employer. "There are countless charges that are filed everyday at the EEOC. Some have merit, some don't, but what the EEOC is required to do is to look at these charges and investigate. That's phase one. After they have done that, there are a couple of options. What typically happens is the EEOC issues what's called a 'right to sue letter.' That means the EEOC is done with the investigation, and you – individual or individuals – can go to federal court on your own, either represent yourself or get a lawyer. In a much, much, much smaller number of cases the EEOC itself takes up the case and becomes the plaintiff on behalf of the individuals."
In the vast majority of cases, however, the issue is resolved at the EEOC level.
Why does the EEOC pick certain cases to litigate over others? "Part of the reason is that a case fits into the EEOC's larger regulatory agenda. It's also based on specific claims that they're seeing. If they're seeing certain trends, for example, and an individual brings that type of case, they might want to pick that case up."
According to the judge's opinion, Star's HR person testified that he received no formal training in Title VII of the Civil Rights Act of 1964, which governs religious accommodations nor did the company even bother to educate themselves on their obligations. "You don't see that very often," Atterberry said, laughing. "That's pretty bad."
Star did not mount any sort of defense. They didn't come forward and show why reasonable accommodation was not possible or would have cause undue hardship. "They did not, from what I can tell, actively litigate this case," she said.
Some speculate that the lack of defense may be because the carrier had, without warning to the community and some drivers, closed their doors more than six months earlier. According to drivers and the mayor of Morton, quoted in the Peoria Journal Star, the company had been on shaky financial ground for some time.
Atterberry adds: "This is not a situation where an employee went to management and said 'I need a religious accommodation,' and the employer said, 'Okay, what is it that you need? Here's what we can do. Here's what will work. Here's what wouldn't work,' and they have a process or an examination about the matter. This particular case appears to be someone seeming to be willfully ignorant of their obligations, and then refusing – maybe because of ignorance – to do anything about a request."
According to court documents, Star could have easily switched drivers because they rarely hauled alcohol. In 2008, they only carried one case. The following year, they carried 474 cases out of almost 70,000 loads.
Both attorneys offer similar advice to trucking companies. "Know what the law is. Know enough that if somebody comes to you with what seems like a request for an accommodation, that you can't just say 'no.' You need to hit pause. You need to look at what they're asking for and what it is that they need. Look at what your business is doing, how you operate, and see if an accommodation can be made. If so, does it result in an undue hardship?" says Atterberry.
She adds: "Always document. If an employee comes to you, write down exactly what it is that they want. Write an analysis of that conversation, in terms of, 'Here's what we can do. Here's what we can't.' Don't just immediately say, 'We can't do it.' If the accommodation wasn't possible, explain why. If you are able to accommodate the employee, it would be great to get the employee to sign off on it – just a short note, saying something like 'John came to me and requested that he not work on the Sabbath. We rearranged schedules. Everyone's happy.'"
Adds Crawford: "I would never discount someone's request for a religious accommodation out of hand, especially if you're a big company and you can swap easily… Once you hear someone asking for an accommodation, I want [an alarm] to go off in your head. Call HR or whoever your boss is and you say 'I just got this request.' You don't have to say 'yes' or 'no' to the employee at the moment. You say, 'Let me get back to you on that.' Work it through the proper channels so that you don't get surprised by an EEOC charge in the mail two weeks later."
As for the two Star Transport, Inc. drivers, they most likely will not see any court-ordered compensation, according to those close to the case.