An Update on Title VII and Religion in the Workplace

April 12th, 2016  

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Last year, we reviewed the Supreme Court’s opinion in E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015). In Abercrombie & Fitch, the Court held that for a disparate-treatment claim a job applicant need only show that the need for a religious accommodation was a motivating factor in an adverse decision. In Abercrombie & Fitch, the Court reminds us that an employer must accommodate a religious practice if it can do so without undue hardship. Id. at 2031. This year, a district court in West Virginia upheld a jury verdict for a miner who objected to his employer’s policy requiring employees to use a biometric hand scanner when clocking in and clocking out.

Beverly Butcher worked at the coal mine for 35 years. And in 2012, the employer enacted a new policy “requiring all employees to clock-in and clock-out by using a biometric hand scanner.” EEOC v. Consol Energy, Inc., 2016 WL 538478 at *1 (N.D.W.Va.). Because of his religious beliefs, Butcher objected to scanning his hand as required by the employer’s policy. Id. He saw the hand scanner as a tool to be used by the Christian Antichrist to identify his followers. Id. Butcher feared eternal damnation if he followed his employer’s policy. Id. To assuage his religious-based concerns, Butcher requested an accommodation that would allow him to continue working but would not force him to sacrifice his religious beliefs. Not an unreasonable request!

 

Because some employees’ physical impairments prevented them from using the hand scanner, the employer implemented a bypass system that allowed these employees to type in a number. This bypass system prevented the employer from arguing that undue hardship prevented it from accommodating Butcher. But rather than accommodate Butcher’s request, the employer showed Butcher the progressive discipline policy that permitted the employer to fire Butcher if he missed four scans. With 35 years of employment, Butcher decided that he would retire rather than be fired for remaining true to his religious beliefs. Id. This led to the EEOC filing suit seeking injunctive relief against the employer and damages on Butcher’s behalf.

 

The jury returned a verdict in favor of the EEOC and awarded Butcher $150,000.00 in compensatory damages. The court held a hearing and awarded Butcher $436,860.74 for back pay and front pay. And the court entered an injunction requiring the employer to provide religious accommodations and to provide Title VII training to the employees. Following the trial, the employer filed motions seeking relief from the verdict. The employer challenged the sufficiency of the proof on the prima facie case and whether the EEOC established that the employer constructively discharged Butcher.

 

The EEOC’s prima facie case required proof that (1) the employee “‘ha[d] a bona fide religious belief that conflicts with an employment requirement; (2) [the employee] informed the employer of this belief’” [after Abercrombie & Fitch the employee is no longer required to inform the employer of the belief]; and (3) the employee suffered an adverse employment action for refusing to comply with the conflicting requirement. Id. at *2. To rebut the prima facie case, the employer must show either that it accommodated the religious belief or that it could not do so because of undue hardship. Id. The employer argued that the evidence was insufficient to show that the hand-scanner policy conflicted with Butcher’s sincerely held religious beliefs. The employer believed that Butcher’s “‘religious concern dealt with the unknown future of technology’” and it did not conflict with a present belief. Id.

 

In rejecting the employer’s argument, the court noted that there was ample evidence from which the jury could conclude that Butcher believed the hand-scanner policy was immoral. Id. This included testimony from Butcher that he believed using the hand scanner would be pledging “allegiance to the Antichrist.” Id.

 

The court also rejected the employer’s attack on the sufficiency of the evidence regarding constructive discharge. Constructive discharge requires proof that the “‘employer deliberately [made] the working conditions of the employee intolerable in an effort to induce the employee to quit.’” Id. at 3. These elements can be met by evidence that the employer failed to make an accommodation despite requests for an accommodation and it can be shown by “evidence that the employer was aware of reasonable accommodations but did not offer them to the plaintiff.” Id. There was ample evidence on this issue. But the motivating-factor test from Abercrombie & Fitch, does not mean employers always lose.

 

In Nobach v. Woodland Village Nursing Center, 799 F.3d 374 (5th Cir. 2015), the employer fired a nursing home activities aide for refusing to pray the rosary with a patient. Id. at 375. In Nobach, the employer won! Why? Because the employee’s religious objection to praying the rosary was not a motivating factor in the firing decision. It was not a factor because no one involved in the decision to fire knew or suspected that the employee’s refusal was religious based. The evidence showed that the employee never mentioned to any supervisory-level employees that her religion prevented her from praying the rosary.

 

There are lessons to be learned from these cases:

 

  • It is risky for employers to second-guess employees’ religious beliefs or to discount the sincerity of their beliefs;
  • If an employer is aware of an accommodation, the employer should offer it rather than remain secure in its belief that the employee would reject it. In Butcher’s case, the employer wanted to offer evidence that Butcher would not have accepted the accommodation even if it were offered (the employer never offered it). The court rejected this evidence as speculative;
  • Document employees’ disciplinary files. In Nobach, the employer had a record of employee write-ups;
  • Don’t be stingy with your accommodations. The jury was probably not impressed that the employer would allow some employees to use the workaround, but did not offer it to Butcher; and
  • Provide training to those involved in the interview and hiring process as to how to handle situations in which they suspect that an accommodation is necessary.

By:  Dale Conder, Jr.

Click here for link to the article in HR Professionals Magazine:

http://hrprofessionalsmagazine.com/an-update-on-title-vii-and-religion-in-the-workplace/

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