Image
Courtesy of news.softpedia.com
In the latest of many religious discrimination cases
involving religious beliefs about the Mark of the Beast, earlier this year, the
EEOC filed, in the Northern District of West Virginia, an action under Title
VII’s religious accommodation provisions against Consol Energy, Inc. and the
Consolidation Coal Company. See Civil
Action No. 1:13-cv-00215-FPS. The charge
that precipitated EEOC’s suit was filed by an employee who had been with the company
for over 35 years. The employer implemented
a new requirement whereby all employees had to use a biometric hand scanner to track
their time and attendance. The complainant
/ employee repeatedly declined to use the hand scanner, on the ground that to
do so would violate his sincerely held religious beliefs as an evangelical
Christian. The basis for the employee’s
sincerely held religious belief is found in the Book of Revelation:
And I beheld another beast coming up out
of the earth, and he had two horns like a lamb, and he spake as a dragon… And
he causeth all, both small and great, rich and poor, free and bond, to receive
a mark in their right hand, or in their foreheads: and that no man might buy or
sell, save that he had the mark, or the name of the beast, or the number of his
name. Here is wisdom. Let him that hath understanding count the
number of the beast: for it is the number of a man; and his number is Six
hundred threescore and six.
Revelation 13:11, 16-18 (King James Version). Many religious denominations believe that the
above passage is a prophecy, indicating that people will one day be required to
get a mark (often called the “Mark of the Beast”) on their person in order to buy
or sell goods or services, and that the mark will also serve as a sign of allegiance
to the Anti-Christ – a false prophet, and an agent of the devil.
The employee
requested an exemption from the hand scanning, based on his religious
beliefs. The employer responded by
giving the employee a letter written by the scanner’s vendor, Recognition
Systems, Inc., which was addressed “To Whom it May Concern.” The letter noted that the above Bible passage
only specifically references the mark being used in either the right hand or
the forehead. The letter suggested that
persons with concerns about taking the Mark of the Beast should use the hand
scanner with their left hand, and with their palm facing up, and concluded by
assuring the reader that the vendor’s scanner did not assign the Mark of the
Beast.
Based on the above letter, the employer attempted to require
the employee to use the scanner with his left hand, with his palm facing
up. The employee refused, on the grounds
that his sincerely held religious beliefs prohibit him from submitting to
scanning of either hand. He proposed
that he be allowed to continue submitting his time and attendance records
manually, as he had done before the employer adopted the hand-scanning
technology. Alternatively, he suggested
that he be permitted to check in and out with his supervisor. The employer refused the employee’s
alternative proposals, and indicated that the only accommodation the employer
was prepared to offer was scanning of the employee’s left hand, and that the
employee needed to make a decision based on that offer.
In face of the refusals to accommodate his religious
beliefs, the employee retired earlier than he had originally intended,
specifically indicating to his superiors that he was resigning involuntarily
and under protest, and that he felt that he had no choice but to retire because
of the employer’s refusal to grant him an exception from the biometric hand
scanning.
After conciliation
failed, the EEOC filed suit. The
complaint, which is available on PACER, alleges that “[a]t least two persons
employed by Defendants… at the time that [employee] requested religious
accommodation were permitted exemptions from biometric hand scanning due to
missing fingers,” and that “[t]hese two persons were permitted to submit their
time and attendance by other means.”
On September 30, 2013, the EEOC filed an emergency motion to
continue the proceedings due to the shutdown of the federal government. On October 1, 2013, the district court judge,
Judge Frederick P. Stamp, Jr., treated the motion as a motion to stay, and
granted a stay of the matter until further notice.
For other cases involving employee’s beliefs about the “Mark
of the Beast,” both in the U.S. and in other countries, see, e.g.:
- -
Hover v.
Florida Power & Light Co., No. 93-14236-CIV-RYSKAMP, 1994 U.S. Dist.
LEXIS 19920 (S.D. Fla. Nov. 14, 1994), magistrate
judge’s report and recommendation aff’d, 1994 U.S. Dist. LEXIS 19919 (Dec.
9, 1994) (Employee believed that his social security number was the Mark of the
Beast, and claimed religious discrimination based on his employer forcing him
to provide his social security number on certain tax and employment documents
as a condition of employment as a health physics technician. The Court granted the employer’s motion for
summary judgment, on the basis that the employer was required by federal law to
obtain the employee’s social security number for background criminal history
checks, security clearances, radiation clearances, and monitoring and tax
withholding to the IRS, and that requiring the employer to violate federal law
to accommodate the employee’s religious beliefs constituted an undue burden.);
- -
Hyatt v.
Berry Plastics Corp., No. 4:11-cv-278-HLM-WEJ (N.D. Ga.), complaint
available here
(Employee in a plastics plant claimed that he was fired for refusing to wear a
sticker celebrating how many days the plant had been accident free. Once the number of accident-free days reached
six hundred and sixty six (666), employee refused to wear the sticker on the
basis of his religious beliefs, on the grounds that 666 is the Mark of the
Beast. The parties jointly stipulated to
dismiss the case for no specified reason, presumably indicating that the
parties ultimately settled the matter.);
- -
Kendall v.
Arbor Place of Puryer, No. 1:07-cv-01058-JDT-sta (E.D. Tenn.), complaint
available here
(Two former employees of a nursing home alleged that their sincerely held
religious beliefs prevented them from using a biometric hand scanner. The parties ultimately settled the matter.);
- -
Amos v.
Hertz Corp., No. 1:07-cv-0491 (N.D. Ga.), complaint available here, (Former van
driver for Hertz refused to participate in a timekeeping system involving a
hand scanner, and was fired a week after notifying his boss of the “religious
issues” which he had in using such a system.
In a January 9, 2009 recommended opinion by a magistrate judge
(available on PACER), which was later adopted by the Court, the employer’s
motion for summary judgment was granted on procedural grounds – i.e., that the
employee had failed to properly exhaust administrative requirements, as his
initial charge against the employer was for disability discrimination. The Court found that “Plaintiff has pointed
to no facts in his EEOC charge that would have indicated to a reasonable
investigator that Plaintiff was complaining about discrimination based on
religion.”);
- -
407 ETR
Concession Company v. National Automobile, Aerospace, Transportation and
General Workers Union of Canada, CAW-Canada, 2007 CanLII 1857 (ON LA Jan.
29, 2007), opinion available here
(Holding by an arbitrator in a Canadian labor grievance case that an Ontario
company “never seriously addressed the question of what it could do to
accommodate” three employees with regard to the use of a hand scanner, apart
from allowing them to use their left hand, which they declined to do. The arbitrator reasoned that the
accommodation which the union and the employees sought, that the employees be
allowed to use the biometric scanner with a swipe card and a password, without
its biometric features, “does not impose an undue hardship on the Employer.”
- - Matthew Heller, Hand Scanners Spark Religion Bias Suits, On Point (March 28, 2007),
available here
(discussing the above Hertz, Arbor Place, and 407 ETR Concession Company cases, as well as a 2004 decision by the
Employment Relations Authority of New Zealand, finding no basis for a religious
discrimination claim involving a hand scanner, because the scanner does not
stamp a mark on a person, or storage the image of a fingerprint).
Similar cases have also been brought in the context of
education. For example, in Hernandez v. Northside Indep. Sch. Dist.,
916 F. Supp. 2d 757 (W.D. Tex. 2013), the plaintiff challenged a school district’s
mandatory rule that every student on campus carry the same radio-chipped
student ID badge for identification, safety, and security purposes, on the
grounds that the requirement violated the student’s First Amendment free speech
and free exercise rights, her rights under the Texas Religious Freedom Act, and
her Fourteenth Amendment due process and equal protection rights. The student and her family believed that the
chip in the badge was the Mark of the Beast, and had a religious objection to
the student carrying the badge. The
school offered to allow the student to wear the badge like other students, but
without the radio chip. The student and
the family still objected, on the grounds that doing so would make it appear
that the family was part of the chip ID program, which would signal their
approval of what they saw to be the Mark of the Beast. The judge, District Judge Orlando Garcia,
denied the plaintiff’s motion for a preliminary injunction, on the grounds that
it was unlikely that the plaintiff would prevail on the merits of her claims.
In view of all of the above, it is even more important than
ever for organizations to develop strong anti-discrimination practices. While well drafted anti-discrimination and
complaint policies are certainly a part of that, it is equally crucial for
employers to train its employees on how to respond to complaints:
- All
Complaints Should be Treated Seriously: Regardless of an employer’s
personal beliefs or background, all complaints should be treated the same. Preferably, all complaints should be promptly
directed to trained, Human Resources personnel who are sufficiently experienced
and qualified to resolve them promptly and appropriately. There should be a well-oiled process for
escalating disputes to upper management in a timely fashion. The most serious complaint is the one the
appropriate management official doesn’t hear about until it is too late.
- Don’t Ask
“Why” – Ask “Why Not”: Employers would be well advised to accommodate the
restrictions of its employees, whether based on their convictions or their
disabilities, unless the employer would suffer a demonstrable undue hardship. Only if the employer can demonstrate that
accommodating the employee would involve an undue hardship should the employer
ask whether the employee is actually “disabled” or has a “genuinely held
religious belief”.
- Keep an
Open Mind: Especially in cases of religious accommodations, it is important
for employers to keep an open mind.
Remember, to qualify for protection, an employee’s religious belief need
only be “genuinely held.” It need not be
objectively – or even subjectively – reasonable. If an employer must assess whether its
employee’s beliefs are “genuine” and “deeply held” (and see point 2 “Don’t Ask
Why – Ask Why Not”, above), the employer should carefully separate its own,
personal, views, from those of its employees.
- Training:
All management employees should be well trained in the law and in the
employer’s policies. Anti-retaliation
training is especially important.
Please be sure to visit our website at http://RobertBFitzpatrick.com
Posts
