Mark of the Beast

How does an employer comply with a statutory requirement that an employee says conflicts with a sincerely held religious belief?  This issue has come up when an employee is fired after refusing to produce a social security number for religious reasons.  Courts considering religious discrimination claims in this context have uniformly held that Title VII of the Civil Rights Act (“Title VII”) does not require an employer to accommodate an employee’s religious beliefs if doing so would violate a federal statute that requires employers to collect the social security numbers of its employees.  See e.g., Yeager v. FirstEnergy Generation Corp., 777 F.3d 362 (6th Cir. 2015); Cassano v. Carb, 436 F.3d 74 (2d Cir. 2006); Baltgalvis v. Newport News Shipbuilding Inc., 132 F. Supp. 2d 414, 418 (E.D. Va.), aff’d, 15 Fed. Appx. 172 (4th Cir. 2001); Seaworth v. Pearson, 203 F.3d 1056 (8th Cir. 2000) see Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999); Weber v. Leaseway Dedicated Logistics, Inc., 166 F.3d 1223 [published in full-text format at 1999 U.S. App. LEXIS 220] (10th Cir. 1999). These courts reason either that a requirement imposed by the Internal Revenue Code is not an “employment requirement” or that requiring violation of a federal statute would create an undue hardship

While this seems to make sense, a recent case out of Pennsylvania, Kaite v. Altoona Student Transp., Inc., No. 3:17-cv-5, 2017 U.S. Dist. LEXIS 179112 (W.D. Pa. Oct. 30, 2017), demonstrates how an employer can still be twisted in knots trying to comply with conflicting legal requirements.

Bonnie Kaite was employed by Altoona Student Transportation, Inc. (“ASTI”) as a school bus driver.  In 2015 Pennsylvania passed a law that requires school bus drivers to undergo a background check that includes fingerprinting.  Kaite, who had been hired in 2001, was informed the background check was required to continue her employment.  Kaite told ASTI that she had a religious objection to fingerprinting.  According to Kaite, a devout Christian, “the Book of Revelation prohibits the ‘mark of the devil,’ which she believes includes fingerprinting, and that she will not get into Heaven if she submits to fingerprinting.”  Kaite asked ASTI to accommodate her religious beliefs by allowing her to undergo an alternate form of background check without fingerprinting.  ASTI refused and terminated Kaite’s employment for her failure to comply with the state law’s fingerprinting requirement.  According to Kaite, ASTI permitted an employee with unreadable prints to complete a background check that did not require fingerprinting.

Kaite sued and alleged religious discrimination in violation of Title VII.  ASTI filed a motion, pursuant to Federal Rule 12(c), for judgment on the pleadings (in which the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff).

Religious accommodation claims are evaluated using the familiar McDonnell Douglas burden shifting framework.  A plaintiff can establish a prima facie case of religious discrimination by showing: (i) she holds a sincere religious belief that conflicts with an employer requirement; (ii) she informed her employer of the conflict; and (iii) she suffered adverse action for failing to comply with the conflicting requirement.  If those elements are established, the employer then must demonstrate it made a good faith effort to reasonably accommodate the employee’s religious belief, or that granting an accommodation would create an undue hardship for the employer.  Once the employer meets this burden, a plaintiff must prove by a preponderance of the evidence that the employer’s articulated reasons for taking adverse action were a pretext for discrimination.

ASTI contended: (i) Kaite’s preference to avoid fingerprinting was not a “religious belief” under Third Circuit precedent because it is not something that can be accommodated without undue hardship; and (ii) Kaite had not alleged failure to comply with an “employment requirement,” because the fingerprinting requirement was not imposed by ASTI but by Pennsylvania’s Child Protective Services Law (“CPSL).  ASTI also argued that even if Kaite had established a prima facie case, it could not accommodate her without undue hardship because there are criminal penalties for failing to comply with the CPSL.  ASTI also claimed that it was not authorized to grant the requested accommodation, and although it had investigated Kaite’s request with various governmental entities, those government entities, not ASTI, had denied the requested accommodation.

The court was not persuaded by any of ASTI’s arguments, at least not at the motion to dismiss stage, despite ASTI’s reliance on the Baltgalvis and Seaworth decisions.  The court attempted to distinguish these cases, but not very persuasively.  Instead, the most important factor in the court’s decision seemed to be Kaite’s allegation, which the court accepted as true for purposes of ASTI’s motion, that an employee with unreadable fingerprints was allowed to undergo an alternative background check. In light of this allegation, the court allowed the case to move forward.

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