Seyfarth Synopsis: In EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a judgment against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.
On June 12, 2017, in EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a damages award of almost $600,000 against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.
Beverly Butcher is a life-long evangelical Christian who worked for 37 years for Consol Energy’s mine in West Virginia. In 2012, Consol installed a biometric hand-scanner system at the mine to improve monitoring of employees’ attendance and work hours. The system required an employee checking in or out to scan his right hand. The shape of the employee’s hand was linked to the employee’s personnel number.
Butcher notified the employer that using the scanner would violate his religious beliefs, because he feared that when his hand was scanned, he would be “marked” with the “Mark of the Beast.” Butcher believes, based on the Book of Revelation, that the “Mark of the Beast” brands followers of the Antichrist, and that someone so marked can be manipulated by the Anti-Christ and will be condemned to everlasting punishment. Butcher believed that use of the hand-scanning system, even if it left no physical or visible mark, would result in being so “marked.”
Consol asked Butcher to submit a letter from his pastor supporting his request for accommodation, which Butcher did, along with his own letter explaining his religious beliefs. Butcher explained that he objected to scanning either his left or right hand. He offered to punch a time clock, as he had historically, or to check in with a supervisor in lieu of the biometric system.
In response, the company provided assurances that the scanner could neither detect or place any mark — including the Mark of the Beast — on a person’s body. The company also offered its own Biblical interpretation, explaining that the Mark of the Beast is associated with the right hand, and thus that scanning the left hand should pose no religious conflict.
At the same time, the employer granted accommodations to two employees with hand injuries, allowing them to forego the biometric system and instead enter their personnel numbers on a keypad attached to the system. In an email authorizing this medical accommodation, a company representative wrote, “Let’s make our religious objector use his left hand.”
Faced with the choice of submitting his left hand to the scanner or being disciplined, Butcher rendered his retirement.
The EEOC brought suit alleging that the employer unlawfully failed to accommodate the employee’s religious belief and constructively discharged him in violation of Title VII. A jury returned a verdict in favor of the EEOC, finding that the employee had a sincere religious belief in conflict with a work requirement, that he had informed the employer of the conflict, and that the employer had constructively discharged the employee for refusal to comply with the work rule. The jury awarded $150,000 in emotional distress damages, to which the District Court added over $426,000 in front and back pay and lost benefits. The District Court held that punitive damages were not available as a matter of law.
The Appellate Holding
The Fourth Circuit affirmed the judgment against the company. The Court rejected the company’s central argument that there was in fact no conflict between the employee’s religious beliefs and the hand scanner requirement, because the scanner in fact would leave no physical mark.
The Court emphasized that there was ample evidence from which the jury could conclude that the employee sincerely believed that any participation in the scanner system, with or without a physical mark, was a show of allegiance to the Antichrist and therefore violated his religious convictions. “That is all that is required to establish the requisite conflict between Butcher’s religious beliefs and Consol’s insistence that he use its scanner system,” the Court held.
In the Court’s view, the problem with the employer’s approach to the request for accommodation was its belief that the employee was mistaken in his religious beliefs. The employer had concluded that there was no religious conflict because the Mark of the Beast would require a physical mark, and only on the right hand. The employer also noted that the pastor, while affirming that Butcher was religiously devout, did not share the concern about the biometric scanner. “But all of this, of course, is beside the point,” the Court held, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings.”
Finally, the Court noted that this was not a case where the employer could show that an accommodation was not feasible or would impose undue hardship. To the contrary, the employer had made an accommodation to two other employees for non-religious reasons, and had conceded that that accommodation posed no additional burdens or costs on the company.
The Court also upheld the constructive discharge judgment, holding that there was sufficient evidence that the employer made conditions intolerable by refusing to accommodate the religious objection, such that a reasonable person in Butcher’s position would have retired.
The Court did uphold the lower court’s ruling that this was not a punitive damages case, reasoning that the EEOC had not proven that the employer “subjectively appreciated” that its accommodation efforts were inadequate.
Takeaways for Employers
This opinion suggests several important takeaways for employers.
First, in considering an employee’s stated religious belief, the employer should generally assume the sincerity of the belief. Faced with a request based on an unfamiliar religion or religious practice, some employers may be tempted to take to Google, or to conduct its own inquiries, to try to figure out if a religion is a “real” religion, or whether a particular practice is “really” required by a given religion. But the law protects all religious practices, not just those of mainstream religions. Religious beliefs are protected even if they are newly practiced by the employee, or uncommon, or not part of any formal religious church or sect, or practiced by a small number of people. The fact that an employee’s personal religious practice may differ from that of others in the same religion, or even his own clergy leader, does not mean the employee’s personal religious belief is not sincere. Questioning the sincerity of the employee’s belief may also backfire by alienating the employee, or subjecting the employer to a claim that the employer had animus toward the employee based on religion. In the rare case where the employer has specific evidence of insincerity, the employer should enlist assistance of counsel.
Second, while the opinion did not directly address the appropriateness of the employer’s request for a pastor letter, an employer should generally avoid asking for such documentation from a third party. As the Court explained, whether or not the pastor agreed with the employee’s religious practice or objection was not dispositive of the sincerity of the employee’s belief. Further, the employee need not belong to a formal religion and thus may not even have a clergy member from whom to request a letter. Absent extenuating circumstances, the fact that the employee himself states a sincere religious belief is sufficient and third-party corroboration is not required.
Third, in evaluating whether a requested accommodation is reasonable or would impose an undue hardship, the employer must be mindful of consistency. As the Fourth Circuit held, the fact that the employer was able to make a relatively simple accommodation for other employees for non-religious reasons without hardship in turn showed that allowing that same accommodation to Butcher would impose no hardship. Thus, the employer faced with an accommodation request should carefully evaluate its exceptions to the work rule more generally. What other exceptions are being made to the work rule for non-religious reasons? What exceptions are being made for other employees’ religious observance?
The case demonstrates the sensitivity required in handling religious accommodation requests and the legal exposure that such requests can present. When in doubt, employers should seek assistance of counsel with expertise in this specialized area of employment law, and knowledge of the applicable federal, state and local laws that may apply.