“Sign of the Beast” Hand Scanning Case Provides Valuable Lesson to Employers

An employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act (“FLSA”) has resulted in a large dollar jury verdict in a religious discrimination case, as well as continued scrutiny from the Equal Employment Opportunity Commission (“EEOC”).  [EEOC v. Consol Energy, Inc., N.D. W.Va.] The case should serve as a valuable lesson to employers when it comes to providing for reasonable accommodation of religious practices, as required under Title VII of the Civil Rights Act of 1964.

Accurate time-keeping of employee work hours is a requirement of the FLSA, but employers routinely have to deal with employees who forget to properly clock-in or clock-out, or who sometimes arrange for friends/co-workers to falsify work hours by having them clock-in for the otherwise absent employee.  One high-tech solution that employers have started using is biometric devices, which scan an employee’s unique fingerprint or handprint to simplify the process and to guarantee that the person clocking-in is the actual employee.  How could anything go wrong with such a fool-proof and elegant solution?  That question would best be directed to mining company Consol Energy, Inc.

Consol operates a coal mine in West Virginia, and utilizes a biometric hand scanning device to track employee work hours for purposes of payroll and FLSA compliance.  One employee, Christian Beverly Butcher, told his supervisor that he could not comply with the hand scanning policy because he believed the technology has a connection to the “mark of the beast” and the Antichrist, as alluded to in the Book of Revelation in the New Testament of the Bible. 

As a proposed reasonable accommodation, the company offered to allow Butcher to scan his left hand with his palm up, which he declined.  Butcher resigned, stating that he was doing so involuntarily.  He brought his complaint to the EEOC, which filed suit on his behalf against the company, alleging that Consol had violated Title VII by failing to reasonably accommodate Butcher’s sincerely held religious beliefs.

A federal judge in West Virginia denied Consol’s effort to have the lawsuit dismissed on a motion for summary judgment, and in January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages.  The EEOC has since filed a post-trial motion seeking an additional $413,000 in front and backpay.  Adding insult to injury, on March 4, 2015, the EEOC moved the District Court to grant an injunction barring the company from forcing its employees to use biometric hand scanning systems, arguing that there is a risk the company will continue to violate anti-discrimination laws.

Religious accommodation cases can be a minefield for employers. The lesson to be learned from this case is that Title VII and the EEOC take a very broad view of religion, and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice or belief.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs. 

While a reasonable accommodation does not have to be the particular accommodation preferred by the employee, it does have to be an accommodation that resolves the religious conflict with the workplace practice.  In this case, the company’s offer to let Butcher scan his left hand, palm up as opposed to his right hand, palm down, did not resolve the essential conflict between Butcher’s sincerely held religious belief and the company’s biometric time recording system.  In this case, the company could have avoided very expensive litigation simply by allowing Butcher to have used a non-biometric time recording system, such as a manually filled-out time card.

It is for this reason, that employers are well advised to include in their employee handbooks language that makes employees aware of their right to request religious accommodation.  Employers also should provide training to supervisors on how to recognize religious accommodation issues and how to successfully address such requests. 

Religious accommodation cases typically involve conflicts between religious practices and uniformly applied workplace dress codes or grooming standards, or workplace schedules that conflict with an employee’s Sabbath or other religious holidays.  However, every case can vary.  As noted in the original article from which this blog draws its name, even an employee’s tattoo can raise religious accommodation issues.  While the religious conflict in EEOC v. Consol Energy, Inc. is not something usually encountered by employers, it illustrates that every religious accommodation issue needs to be addressed on a case-by-case basis, and that there is no “one-size fits-all” solution.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Workplace Profanity Can Support Religious Discrimination Claim

A ruling by a federal District Court in Oregon should serve as a warning to employers that a co-worker’s use of profanity in the workplace may be enough to support a triable religious discrimination hostile work environment claim under Title VII of the Civil Rights Act (“Title VII”). In Griffin v. City of Portland, the Court noted that while not every use of profanity that occurred was enough to prove it was directed at the plaintiff because of her protected class, there was sufficient evidence to put the case in front of a jury.

For an excellent in-depth analysis of the case, I would direct you to an article authored by MaryJo Roberts, of my firm’s New Orleans office. For purposes of this posting the facts are as follows.

The plaintiff in the case, Kellymarie Griffin, described herself as a devout Christian. She alleged that co-workers frequently used profanity in the workplace, including the names of God and Jesus Christ in their curse words. The Plaintiff alleged that because of her deep religious beliefs, she was offended by such profanity and would inform her co-workers that such language was offensive to her. From the facts of the case, it appears that for the most part, such profanity from her co-workers was not directed at her because of her faith or on the basis of religious animus, and the co-workers generally refrained from cursing in her presence after she spoke with them.

More troubling were specific comments from plaintiff’s co-worker Theresa Lareau. According to the lawsuit, Lareau called plaintiff a “wacko” and told plaintiff that she prayed to something “that didn’t exist.” On one occasion, after plaintiff complained about profanity, Lareau allegedly told her "I'm sick of your Christian attitude, your Christian [expletive] all over your desk, and your Christian [expletive] all over the place" and Ms. Lareau accused Plaintiff of using her religion for attention.

Plaintiff filed a lawsuit claiming she was subjected to a religiously hostile work environment because of her religion. Her employer sought to have the case dismissed on summary judgment, but the District Court denied the City’s motion, allowing the case to proceed to trial. The Court held that "not every allegation of offensive conduct" by Plaintiff's co-workers will ultimately be pertinent to the question [of] whether Ms. Griffin was subjected to a hostile work environment because of her protected status”, but that she had "shown sufficient evidence of religiously discriminatory conduct to make out a claim for hostile work environment religious discrimination as a matter of law."

The Court’s opinion distinguished between profanity that directly implicated religious ideas and profanity that were simple secular epithets. Of note was the Court’s observation that the absence of a hostile intent was not enough to insulate an employer from liability and “if conduct occurred 'because of' a plaintiff's protected status, even if the actor does not intend hostility or even know that the conduct may be perceived as hostile, that conduct is relevant to whether the plaintiff experienced a hostile work environment." The Court also found there was a jury question as to whether the City had taken sufficient action to remedy the alleged religious discrimination.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijman@phelps.com