The Devil is in the ... Biometric Scanner? Fourth Circuit Finds Employer Failed to Accommodate Employee’s Religious Belief

by Bradley Arant Boult Cummings LLP

Just how far do you have to go to accommodate an employee’s off-the-beaten-path religious belief? The 4th Circuit Court of Appeals recently ruled that you at least have to give the same accommodations you give to disabled employees. In U.S. EEOC v Consol Energy, Inc., Mr. Beverly Butcher’s evangelical Christian beliefs put him in conflict with Consol Energy’s decision to use a hand scanner as part of the time clock system.

The Facts

Mr. Butcher, who had worked for the coal mine for 40 years, was also an associate pastor in a church that believed that the hand scanner time clock would “mark” him in a way that could lead to his identification with the Antichrist, as shown in the book of Revelation. He talked to his union representative about his concerns and the union contacted HR. Initially, the coal mine told Mr. Butcher that they needed a letter from his pastor explaining why he needed a religious accommodation. Mr. Butcher provided the letter and also met with management about the situation. He offered to verbally report his time to his supervisor or to punch in on a time clock instead of using the biometric hand scanner. Consol Energy responded by providing a letter from the scanner manufacturer assuring that (no kidding) since the biometric scanner only used an employee’s left hand, it would not violate any concerns from Revelation which states that the “Mark of the Beast” is only associated with the right hand or forehead.

Unknown to Mr. Butcher, at this same time the coal mine was accommodating two other employees who had hand injuries. Those employees were allowed to enter their personnel numbers on a keypad instead of using the scanner. The employer refused to make the same accommodation for Mr. Butcher, noting in an email “Let’s make our religious objector use his left hand.” Mr. Butcher was told he had to use the hand scanner system, so he tendered his retirement papers and, apparently, an EEOC charge. The EEOC brought an enforcement action against the coal mine for failing to accommodate Mr. Butcher’s religious beliefs in violation of Title VII and constructively discharging him.

At trial, Mr. Butcher and the EEOC won and awarded him $150,000 in damages. The court later awarded an additional $436,860 in front and back pay and lost benefits. The coal mine appealed.

The 4th Circuit’s Take

The 4th Circuit’s opinion began by noting that under Title VII, an employer must make reasonable accommodation for the religious beliefs of employees, short of incurring an undue hardship. To show a violation of this accommodation duty, an employee must show that he or she has a bona fide religious belief that conflicts with an employment requirement; that he or she informed the employer of this belief; and that he or she was disciplined for failing to comply with the conflicting employment requirement.

The coal mine argued that Mr. Butcher was not entitled to win because there was, in fact, no conflict between his religious beliefs and the requirement that he use the hand scanner system. They relied on the fact that Mr. Butcher admitted that the scanner would not imprint a physical mark on his hand. However, the 4th Circuit found it significant that Mr. Butcher clearly laid out his religious objection to using the system, despite knowing that it would not produce a physical mark. The court held that there was “ample evidence” to show that Mr. Butcher sincerely believed that even without a physical mark, his use of the hand scanner “was a showing of allegiance to the Antichrist” and was inconsistent with his religious convictions. The fact that the employer believed that Mr. Butcher’s beliefs about the hand scanner were “mistaken” was not enough to get beyond that conflict. The court stated that it is not the employer’s place to “question the correctness or even the plausibility of [the Plaintiff’s] religious understandings.” Instead, as long as there is sufficient evidence that the employee’s beliefs are sincerely held, as the jury found here, then they must accommodate.

The coal mine also attempted to argue that Mr. Butcher did not suffer an adverse employment action since he chose to retire. The court found that there was substantial evidence that Mr. Butcher was put in an “intolerable position” when his employer failed to accommodate his religious objection. The court held that Mr. Butcher’s belief that his use of the hand scanner would render him a follower of the Antichrist and make him “tormented with fire and brimstone” went beyond run-of-the-mill employee complaints such as unfair criticism or dissatisfaction with work assignments. As such, his retirement could constitute a constructive discharge. The 4th Circuit ended up affirming the lower court verdict and findings.

Accommodating Sincerely Held Religious Beliefs

This case provides a good, but probably rare, example of where an employee’s unique, but sincere, religious belief may come in conflict with what seems to be a mundane employer requirement. As noted by the court, an employer cannot escape the requirement to accommodate simply because they think the belief is stupid or mistaken. If there is enough evidence to show that the employee really believes it, you need to start looking at whether you can find some sort of accommodation.

This is also a good reminder that undue hardship is a defense in a religious accommodation case.  Although the undue hardship defense is less onerous in this context that under the Americans with Disabilities Act, you still have to show hardship. That the coal mine was providing an accommodation for two other employees’ physical restrictions (even if only temporarily) certainly did not help the argument’s cause. The coal mine here chose not to provide Mr. Butcher a similar accommodation, and it ended up costing them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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