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eLABORate: "Sign of the Beast" Hand Scanning Case Provides Valuable Lesson to Employers

March 09, 2015

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 system 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. 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.