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Even if you’re not an employment lawyer, it’s hard not to be interested in a case that features the thrills of FLSA compliance and the perils of accommodating religious beliefs. The 4th Circuit Court of Appeals faced this unique combination in EEOC v. Consol Energy when it determined that an employer failed to reasonably accommodate an employee who refused to use a biometric hand scanner because it would leave the “mark of the beast.” 

The Facts 

To more accurately track attendance and time worked, the employer, Consol Energy, installed a biometric hand scanner. Beverly Butcher, an evangelical Christian employed with Consol for over 35 years, refused to use the new biometric scanner. Butcher believed that the Book of Revelation referenced the hand-scanning technology when it described the Antichrist as causing all to have a “mark on their right hand.”

Butcher made repeated requests to Consol to exempt him from use of the biometric hand scanner based on his religious beliefs, but the company denied those requests. The employer reasoned that hand scanner left no physical mark. In any event, Consol understood that the “mark of the beast” related to the right hand and the company could “accommodate” Butcher by allowing him to use his left hand in the scanner. The employer had already approved complete exemptions from the biometric scanner for two employees with hand injuries. In fact, in authorizing the medical accommodations, a company representative wrote, “Let’s make our religious objector use his left hand.”

Facing discipline for refusing to use the biometric scanner with his left hand, Butcher retired. He then filed a charge of discrimination with the EEOC alleging that by failing to accommodate his religious beliefs Consol had constructively discharged him. The EEOC took the case to trial and a jury found in favor of the employee. The court awarded the employee a total of $586,860 in lost wages, benefits, and compensatory damages. 

The Appeal 

The employer appealed. In affirming the lower court, the 4th Circuit Court of Appeals noted that although the employer provided “an alternative to employees who could not use the hand scanner for non-religious reasons, it refused to accommodate [Butcher’s] religious objection. Forced to choose between his religious commitments and his continued employment, [he] retired under protest.”

The court noted that the “evidence presented at trial allowed the jury to conclude that [the employer] failed to make available to a sincere religious objector the same reasonable accommodation it offered other employees, in clear violation of Title VII.”

Where did this employer go wrong? 

Title VII prohibits employers from discriminating against an employee based on “bona fide religious belief.” With an increasingly diverse workforce, employers must keep in mind that the law protects sincerely held religious beliefs, not just those involving commonly accepted religious practices. 

Title VII also requires employers to accommodate an employee’s sincerely held religious beliefs, unless doing so would be an undue hardship. The undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation poses “more than de minimis” cost or burden. This is a considerably lower standard for employers to meet than the undue hardship standard under the Americans with Disabilities Act, which is defined as “significant difficulty or expense.”  Even with this lower standard, the employer in this case could not show a de minimis burden when it had accommodated two other employees for non-religious reasons. 

This is a reminder that in situations involving accommodations, whether for religious or disability reasons, once accommodations are approved for one employee, it’s often difficult to show that the same accommodation can’t be made for others. 

In addressing accommodation requests, employers are well advised to communicate with employees about their requests and keep an open mind in identifying and implementing reasonable accommodations. 

 For more on what employers can do to avoid employment law risk, view our recent Business Hour - You’ve been served: Why employers get sued and how to avoid it.

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