This week, the Supreme Court of the United States (SCOTUS) declined to review several employment cases petitioned to the Court. One of those cases, EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017), sought review of a religious accommodation case where the employer refused to accommodate an employee who objected to using a biometric time tracking system because he believed it marked him as a supporter of the Antichrist. This case provides an interesting insight into the state of the law protecting religious practice in the workplace, and is worth a read.
The facts of the case make for good reading. The employee was a devout evangelical Christian who had worked for the employer for nearly forty years. He had no record whatsoever of poor performance or any other workplace incident. But that changed when he refused to use the employer’s required tracking system.
Relying on specific excerpts of scripture and a letter from his pastor, the employee told his employer that he could not use the company’s time tracking system because he believed that if he placed his hand on the biometric scanner to punch in and out, he might receive the “Mark of the Beast”, branding him a follower of the Antichrist and condemning him to everlasting punishment. As an alternative, the employee offered to check in with his supervisor upon arrival or departure, or punch in and out on a time clock as he had done in the past. The employer refused to allow this, instead insisting that the employee use the biometric scanner. The employee decided to retire given what he believed was a risk of eternal damnation. The EEOC sued on the employee’s behalf, and prevailed at trial. The employee was awarded over $500,000 in back pay, front pay, lost benefits and compensatory damages.
On appeal to the Fourth Circuit, the employer argued that the employee could show no conflict between his religious belief and the use of the hand scanner in essence because the employee was wrong about the religious teaching. According to the employer, scripture provides that the “Mark of the Beast” can be made only on the right hand and involves an actual physical mark, and the scanner did not make any physical mark and could be used with the left or right hand, according to the manufacturer. The employer therefore reasoned that the employee could use the biometric system without being at risk of branding himself a follower of the Antichrist. The employer also noted that the employee’s own pastor did not share the employee’s religious beliefs objecting to use of the scanner.
Employers Must Accommodate Sincerely Held Religious Beliefs, not “Correct” religious beliefs, unless such might pose an undue burden:
The Fourth Circuit rejected this argument, reasoning that it reflected only the employer’s view that its employee’s religious beliefs were mistaken, which view is completely irrelevant in deciding whether to make a religious accommodation. The Court said it is not for the employer or the court to question the correctness or even the plausibility of the employee’s beliefs. “[The employee’s] religious beliefs are protected . . . whether or not [the employee’s] pastor – or [the employer], or the manufacturer of [employer’s] scanning system – thinks that [the employee], in seeking to protect his religious conscience, has drawn the line in the right place.” So long as there is sufficient evidence that the employee’s beliefs are sincerely held (which there was in this case), and that those beliefs conflict with an employment requirement, the employer must try to accommodate the employee unless it can demonstrate an undue hardship.
Constructive Discharge Does Not Require Evil Intent:
The Fourth Circuit Court also rejected the employer’s argument that the employee failed to make the required showing that the employer purposely refused the religious accommodation with the premediated goal of forcing his retirement. The Court noted that in a 2016 decision, Green v. Brennan, 136 S. Ct. 1769 (2016), SCOTUS decided that there is no such “deliberateness” element to a constructive discharge claim. SCOTUS stated:
The whole point of allowing an employee to claim ‘constructive’ discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him. We do not also require an employee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the discrimination so bad that he had to quit, but also that his quitting was his employer’s plan all along.
Applying this standard, the Court also found that the employer’s refusal to offer a religious accommodation rendered the working environment so intolerable as to force the employee to retire. The Court stated:
[An employer] refus[ing] to accommodate [a] religious objection, requiring him to use a scanner system that [employee] sincerely believed would render him a follower of the Antichrist, “tormented with fire and brimstone”…. goes well beyond the kind of run-of-the-mill “dissatisfaction with work assignments,  feeling of being unfairly criticized, or difficult or unpleasant working conditions” that we have viewed as falling short of objective intolerability.
Inconsistent Accommodation for Others Was Key:
Importantly, there also was evidence presented at trial that the employer was willing to accommodate other employees for non-religious reasons. The employer allowed employees with hand injuries to punch in and out using a key pad alternative to the scanner, but it did not offer this option for the employee who objected on religious grounds. The employer also sent an email internally simultaneously authorizing the keypad accommodation for the employees with physical injuries and denying that accommodation to employee. The email stated “[L]et’s make our religious objector use his left hand.” There was also evidence that this alternative system provided no additional cost or burden to the employer. While the appeals court did not delve into these facts in any detail, it is difficult to imagine that they did not affect its decision to uphold the trial. These facts reflect a difference in treatment that can be explained most clearly on religion.
The Take Aways:
SCOTUS’s refusal to review this case indicates that the law concerning religious accommodations is well-settled in certain areas, and the case should guide an employer’s conduct in the workplace when faced with these requests in the following respects:
• Be Receptive! Do NOT substitute your judgment for the judgment of the employee when it comes to religious accommodations. If the employee expresses a sincerely held belief that religion prevents him/her from following a policy or practice, the employer must respect that view, whether or not it holds the same beliefs or finds that the employee misunderstands religious doctrine.
• Be Proactive! Engage in an interactive process with your employee to try to find a way to accommodate an employee’s sincerely held religious belief, even if you think they are unreasonable, mistaken, or unfounded. Given the intensity with which religious beliefs are held, if the employer quits because you refused a religious accommodation, it will likely be enough for the employee to establish that the workplace was so intolerable that he/she was forced to quit. You will not be required to provide accommodations that would impose an undue burden upon you, but you typically will not know whether such a burden exists until you have fully engaged in a genuine interactive process.
• Be Consistent! Always treat employees the same, regardless of religion. If an employer can accommodate an employee for a non-religious reason, this is strong evidence that it can provide the same accommodation when an employee objects on religious grounds.
• Be Careful! Watch what you state in an email, especially with regards to sensitive matters like requests for religious accommodations. It can and will be used as evidence in any future discrimination case.