August 2, 2017
Increasingly, employers are turning to biometric scanners – usually a fingerprint or hand scanner – to track employees’ working time. This method for clocking in and out is generally more efficient and accurate than traditional methods, such as using a punch clock.
However, as with most changes, introducing these scanners often meets with some resistance. An employer’s job is to distinguish the legitimate reservations from the unfounded. This can be a difficult task, particularly when the objection is based upon a religious belief. Title VII of the Civil Rights Act of 1964 prohibits discrimination based upon, among other things, religion, so it is important to address religious objections appropriately.
This was the issue that a West Virginia employer, Consol Energy, Inc., faced when it implemented a hand-scanner timekeeping system at its coal mine and denied a proposed religious accommodation for one of its employees. According to the Fourth Circuit Court of Appeals decision in EEOC v. Consol Energy, Inc., Consol made the wrong call.
A longtime Consol employee of 37 years, Beverly Butcher, reported to his employer that he could not use the scanner timekeeping system because he believed, based upon the New Testament’s Book of Revelation, the scanner would associate him with the Mark of the Beast, allowing the Antichrist to identify and manipulate him, ultimately subjecting him to everlasting punishment. As an alternative to using the scanner, Butcher offered to check in with his shift supervisor or to punch in on a time clock. Instead of accepting Butcher’s alternative, Consol provided him with a letter from the scanner’s manufacturer assuring him that the scanner would not detect or place any mark on him. Consol also countered that the scripture Butcher was interpreting only associated the Mark of the Beast with the right hand and that Butcher could use his left hand.
Although Butcher considered Consol’s proposal, he ultimately determined that he could not participate in the scanning system in good conscience. Even if the scanner would not leave a physical or visible sign on his hand, Butcher continued to sincerely fear that using it could lead to his identification with the Antichrist. Consol informed Butcher that, if he failed to use the scanner, he would be terminated. In response, Butcher retired.
Following his reluctant retirement, Butcher brought a lawsuit against Consol for religious discrimination, prevailed at trial, and ultimately received a $586,860.74 award. Consol appealed, but the Fourth Circuit affirmed the trial court, holding that Consol was “in clear violation of Title VII” in conditioning Butcher’s continued employment upon use of the scanning system.
In so deciding, the court emphasized that Butcher’s religious reservations about the scanner were sincerely held. It was not necessary that his pastor agree with him or that the language in the scripture exactly track his theory. Butcher genuinely feared using the scanner on religious grounds. Consol’s assertion that Butcher’s beliefs were mistaken was a distinction without a difference. The court specifically noted that it was not an employer’s place, nor the court’s, to question the accuracy or even the plausibility of religious understandings. So long as there is sufficient evidence that a belief is sincerely held, “that is the end of the matter.”
What really seemed to rankle the court, though, was that Consol had provided an accommodation to two other employees with hand injuries. Instead of holding their hands to the scanner, these employees were allowed to enter their personnel numbers on a keypad attached to the system. Providing this alternative to the two employees imposed no additional cost or burden on Consol, and allowing Butcher to do the same would have been similarly cost-free. This completely undermined any argument Consol had that an accommodation would not be reasonable or would impose an unfair hardship on the employer.
Consol also attempted to argue it had not disciplined or mistreated Butcher because of his religious belief, noting that he voluntarily retired. The Fourth Circuit disposed of this contention easily, noting that an employee is considered terminated when an employer makes the employee’s working conditions intolerable. It really does not get much more intolerable than requiring an individual to use an instrument that he truly believes will render him a follower of the Antichrist and, in his own words, be “tormented with fire and brimstone.”
Employers should consider carefully before refusing a religious accommodation, especially if they have made similar accommodations on non-religious grounds. More importantly, no matter how illogical a supervisor or human resources representative might view someone’s religious basis for doing or refusing to do something, the driving issue is whether the belief is sincerely held by the individual employee. Any discussion about the religious belief itself should be limited, respectful, and without commentary as to its merits.
The need to make religious accommodations with respect to schedules, clothing, or even timekeeping software is not going anywhere. Employers should train their managers to address any religious-based requests with respect, withholding judgment about the belief and engaging in a discussion with the requesting employee about what accommodations, if any, will resolve the issue. Generally, employers should make accommodations that do not impose an undue hardship on business or operations. Employers with questions about dealing with specific religious discrimination or accommodation issues should contact their labor and employment attorney.
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