Kentucky court clerk Kim Davis’ recent jailing for refusing to issue same-sex marriage licenses has spurred a lot of debate on the issue of religious accommodation in the workplace. The difference between Ms. Davis’ situation and what most employers/employees face is that Ms. Davis is a publically-elected official; she does not work for a private employer. With that key difference noted, the issue is: how far does a private employer have to go to accommodate an individual in the workplace. Judging by the recent EEOC v. Consolidation Coal Company case, the answer may surprise you.
The facts of this case are quite interesting. The employer, Consolidation Coal Company (“CCC”), a mining company, began using biometric hand screeners to track employee attendance and employee work hours. Beverly Butcher, an evangelical Christian, had worked at the mine for over 35 years. When he was told he would have to use the biometric hand scanning system, he refused claiming his religious beliefs prohibited him from doing so, and he requested an accommodation. His specific religious reason: he claimed the hand scanner was the “Mark of the Beast” as discussed in Book of Revelation of the Bible that concerns the end of days.
At first, Butcher’s managers responded with a letter noting that the Mark of the Beast as referenced in the Bible was only a mark on one’s forehead or right hand and, as such, Butcher could use the hand screener on his left hand with his palm facing up. They went on to assure Butcher that the hand scanner did not assign a recipient the Mark of the Beast.
Not feeling 100 percent comfortable with the interpretation of scripture he had been provided or the assurances that he was not submitting to an eternal life of damnation by using the hand scanner, Butcher continued to refuse to use the hand scanner, and proposed he continue submitting his time and attendance manually as he had done previously or that he be allowed to check in and out with his supervisor. CCC refused, despite the fact that it had allowed two other employees who could not use the hand scanners because they were missing fingers and could not use the scanners properly. Those employees’ disabilities were accommodated and they were allowed to punch their employee numbers on a keypad on the scanning fixture; however, CCC refused to allow Butcher to do the same.
Butcher retired under protest at the age of 58 even though he told the court he had planned on working at the mine an additional five years.The Equal Employment Opportunity Commission sued CCC on Butcher’s behalf, and won over a half a million dollars.
One of the biggest issues employers have dealing with religious issues in the workplace is that they cannot grasp that every employee’s religious belief may not make sense to the employer. As a result, employers have had the tendency to laugh at employees; call them names, such as “nuts” or “crazy,” and dismiss their requests as nonsense. Yet, when dealing with religion in the workplace, the employer’s opinion on the religion or the specific religious belief simply does not matter. Rather, the critical question is whether the religious belief is “sincerely held” by the employee. That is it. What an employee believes, rational or not, is not up for interpretation by an employer so long as the employee holds that religious belief sincerely.
The law is simple, an employer must make a religious accommodation if:
- The employee sincerely holds the religious belief
- The religious accommodation is not an undue burden on the employer
While an employer is not required to make a religious accommodation under Title VII of the Civil Rights Act of 1964 that would cause the undue burden on the employer, the issue in this case was that the employer had no problem exempting two other employees from the hand screener system because of their disabilities and allowed them to track their time and attendance through other means. Thus, an alternative means was available. Although it is important to note that what constitutes an undue burden for a reasonable accommodation under the Americans with Disabilities Act has a lower threshold compared to what constitutes an undue burden for reasonable accommodation under Title VII, the issue for any workplace grappling with the same request accommodation under both statutes will be: if an employer can accommodate an employee under the ADA, why not accommodate another employee with the same accommodation under Title VII? In this case, that seemed to be the sticking point for the court and a half a million dollar lesson for the employer.
Getting back to the public issue and the Kim Davis imprisonment matter, it makes me wonder if a publicly-elected gaming warden can declare he will no longer be issuing fishing licenses because he is vegan. Hey, it could happen!