“Sign of the Beast” Lawsuit - Part II

I’ll admit the title of this post sounds like the title of a bad horror movie, and for the owners of a West Virginia coal mine, a religious discrimination/failure to accommodate lawsuit is turning into a real-life legal horror show. The federal judge in the case last week granted the Equal Employment Opportunity Commission’s ("EEOC") motion for additional damages, bringing the verdict against the employer to $586,860 in lost wages, benefits and compensatory damages.

In my previous post, "Sign of the Beast" Hand Scanning Case Provides Valuable Lesson to Employers, I related how an employer’s use of a high-tech hand scanning device to keep track of payroll and stay in compliance with the Fair Labor Standards Act ("FLSA") 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.]

 

One employee, Beverly H.R. Butcher Jr., 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.

 

In January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages. However, that was not the end of the case. In a post-trial motion, the EEOC sought an additional $413,000 in front and back pay.

 

On August 21, 2015, U.S. District Judge Frederick P. Stamp awarded Butcher an additional $436,860.74 in front and back pay, even more than the EEOC had originally requested. The Judge also ordered a three year injunction against Consol Energy, prohibiting the company from denying reasonable accommodations regarding the use of the hand scanning system. The Court also ordered that the company provide training to employees on religious accommodation. Not surprisingly, the company plans to appeal the verdict in the case.

 

This case should serve as a serious wake-up call to employers about recognizing religious accommodation issues under Title VII, and engaging in the interactive process of reaching an accommodation if it can be done without undue hardship. Just from the facts of this case, it’s clear no real attempt was made to accommodate Butcher, and it does not appear that the company took the issue seriously.

 

The need for employers to train supervisors on religious accommodation was recently highlighted in the recent Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc. In my post Ignorance is not Bliss: Religious Discrimination after the Supreme Court’s Decision in EEOC v. Abercrombie & Fitch Stores, I discussed how the Court’s ruling now imposes a heightened standard on employers, and how the EEOC’s new guidelines for accommodating religious garb can serve as a roadmap to hopefully avoiding the type of lawsuit and verdict discussed above.

 

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

“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