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
