The balance between individual religious beliefs and technology in the workforce can be a tricky one to strike. The Fourth Circuit recently addressed potential ramifications of failing to strike that balance appropriately in its decision in EEOC v. Consol Energy, Inc. No. 16-1406 (4th Cir. June 12, 2017).
Beverly Butcher worked as a coal miner at the Robinson Run Mine in West Virginia for 37 years with no record of performance issues. Butcher spent much of his time not on the job serving his church as an evangelical Christian.
In 2012, Consol Energy implemented a biometric hand-scanner system at the mine. Designed to better track the attendance and work hours of its employees, the system required each employee to scan his or her right hand so that it could be identified and linked to that employee’s identification number. The system also allowed individuals to manually enter their identification number on a keypad attached to the system. While such manual entry arguably imposes a slight time delay on the employee, it did not impose any additional burden or cost on Consol.
Scanning systems have become commonplace. The vast majority of stores, from Abercrombie & Fitch to Zales, have scanners in place to read barcodes on items that customers buy. Many sports stadiums, airports, and theaters also feature such systems.
Butcher had an unusual reaction to the scanning system. Specifically, drawing on his evangelical Christian faith and knowledge of the Scriptures, Butcher feared that using the hand-scan system would cause him to be branded with the Mark of the Beast, and thus “converted” as a follower of the Antichrist whose soul would ultimately be tormented with eternal fire and brimstone.
Butcher made his concerns known to human resources. Consol responded by requesting that Butcher provide a letter from his pastor explaining his need for a religious accommodation, which Butcher then provided. Consol claimed it could not make this accommodation for Butcher and, rather than taking the pastor’s word for it, opted to push back. HR presented Butcher with a letter from the scanner’s manufacturer designed to reassure Butcher that its product would not detect or place any mark on any person. The letter went on by offering its own interpretation of Scripture, explaining that the Mark of the Beast is only associated with the right hand and forehead – and, thus, that Butcher could use his left hand instead on the scanner. HR further instructed Butcher to review the information with his pastor and to get back to them.
According to Butcher, he took this opportunity to “[go] back to the scriptures again” and “pray very hard” about his dilemma, then informed HR that he could not, in good conscience, risk subjecting himself to the Mark of the Beast by “scanning [his] hand in and out.” HR gave Butcher a copy of its progressive discipline policy, under which first and second missed scans were subject to written warning, a third missed scan resulted in suspension, and a fourth missed scan would lead to suspension with intent to discharge. Rather than acquiesce, Butcher followed what he believed to be his calling by retiring under protest and subsequently suing Consol for religious discrimination under Title VII.
As the trial evidence revealed thatConsol had, in fact, made accommodations to two other employees who requested accommodations because of hand injuries – namely, by permitting them, at no additional cost to Consol, to use the keypad to “clock in and out.” Most “damningly” for Consol, in the same e-mail that authorized this keypad accommodation for non-religious reasons, management wrote, “[L]et’s make our religious objector use his left hand.” Based on this and other evidence, the jury awarded Butcher $150,000 in damages, and (the coincidentally named) Judge Stamp awarded Butcher an additional $436,860.74 in backpay, front pay, and lost benefits. Consol appealed.
The Fourth Circuit affirmed the verdict. As the Court noted, Title VII both prohibits covered employers from discriminating on the basis of religion and affirmatively requires that covered employers “reasonably accommodate  an employee’s or prospective employee’s religious observance or practice” as long as doing so does not impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); see § 2000e-2(a)(1) (prohibiting discrimination “because of such individual’s . . . religion”). The Court observed that this was an easy case because “Consol expressly conceded that allowing Butcher to bypass the scan by entering his identification number into a keypad would impose no additional burdens or costs” – and thus could not be an undue hardship. Combined with the evidence that similarly situated employees who did not have religious objections were treated more favorably, the Court agreed that the damages award in Butcher’s favor did not merit reversal.
This case offers several lessons for employers to reduce their risks of being similarly marked with a deluge of litigation and damages:
- While employers are permitted to request corroborating documentation of an individual’s religious beliefs from the individual’s faith leader, it is almost always fruitless to challenge those beliefs once presented.
- As with disability accommodation scenarios, it is important to engage in the interactive process with an eye toward finding a workable solution. Employers who deny accommodations must prove that an undue hardship exists, and should be prepared to carefully explain and demonstrate that hardship if challenged.
- Offering a specific accommodation to one or more employees often “sets a precedent” that will make it all the more difficult to justify not providing that same accommodation if another employee(s) comes forward with a similar request.