Refusal to Use Biometric Hand Scanner Leads to EEOC Religious Discrimination Lawsuit

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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.

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EEOC Wins Summary Judgment in Religious Head Scarf Case

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We have written often on the banning of religious garb, whether in the workplace or otherwise.  See, e.g., our article on banning the wearing of burquas (here), our article on the push in France to ban the wearing in public of Muslim veils (here), and our article on the Third Circuit affirming a workplace head scarf ban (here).

In a recent development on this issue, the EEOC recently won a motion for summary judgment, in a religious discrimination case involving the wearing of a religious head scarf. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-cv-03162-YGR, 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).  The defendant in that case, Abercrombie & Fitch, Inc., operates retail stores across the country under the brand names Abercrombie & Fitch, Hollister Co., Abercrombie Kids, and Gilly Hicks. Id. at 4.  The case revolved around Abercrombie’s “Look Policy”, which sets forth certain rules regarding employee appearance, including a prohibition on wearing any form of headwear. Id. at *6-7.  All in-store Abercrombie employees were required to comply with the Look Policy, are to be informed of the Look Policy during the job interview process, and are required to sign an acknowledgement of the Look Policy when they are hired. Id. at *7.  The Look Policy also appears in Abercrombie’s handbook. Id.

Plaintiff, Ms. Umme-Hani Khan, a Muslim, believes that Islam requires her to wear a head scarf, also known as a hijab, when in public or in the presence of men who are not immediate family members. Id. at *7-8.  For more on the practice of wearing a hijab among Muslim women, see Kim Parker, Women, Islam, and Hijab, Postcolonial Studies @ Emory (May 2012) (available here); Islam’s Women: Jewels of Islam, The Virtues of Hijab (available here); Al-Islam.org, The Qur’an and Hijab (available here).  At the time Ms. Khan was hired, she had fully adopted the practice of wearing a head scarf on the above occasions, and she therefore wore a head scarf when she interviewed for the position. Id. at *8.  She acknowledged the Look Policy, and agreed to abide by it. Id. 

Ms. Khan worked for Abercrombie from October 2009 to February 2010, all the time wearing her head scarf. Id. at *9.  Local supervisors allowed her to wear her head scarf so long as it matched company colors (the Look Policy was a part of Abercrombie’s marketing strategy, aimed at “communicating the spirit of” the store’s brand). Id. at *6-7, *9.  Her store managers never informed her that she was not complying with the Look Policy. Id. at *9.

In February of 2010, a District Manager made a regularly scheduled visit to the store at which Ms. Khan worked, noted that Ms. Khan was not in compliance with the Look Policy, informed Ms. Khan of same a few days later, and asked Ms. Khan if she could take her head scarf off. Id. at *10.  Ms. Khan responded that she could not take the head scarf off because it was part of her religion.  Within weeks, Abercrombie suspended and then fired Ms. Khan, solely due to her non-compliance with the Look Policy. Id. at *10-11.  Eleven days after the termination, Abercrombie offered Ms. Khan an unconditional offer of reinstatement with the accommodation of being allowed to wear her head scarf to work, but Ms. Khan declined the offer of reinstatement. Id. at *11.

At the time that Ms. Khan filed her charge of discrimination with the EEOC, the EEOC was involved in two other cases against Abercrombie in connection with the wearing of headscarves – one case alleging a refusal to hire an applicant for an associate position because she wore a hijab, and the other alleging a refusal to hire a woman as a model because she wore a hijab. Id. at *11-12.  The EEOC found reasonable cause to believe that Abercrombie had discriminated against Ms. Khan in violation of Title VII. Id. at *13.  The EEOC unsuccessfully attempted to jointly settle all three cases with Abercrombie.  Id. at *12-13, *15. The EEOC, as a part of a conciliation effort, attempted to get Abercrombie to agree to modify its policies to allow the wearing of head scarves by all employees, but Abercrombie rejected that proposal, as the EEOC’s proposed policy modification did not allow for a case-by-case consideration of whether employees should be permitted to wear head scarves. Id. at *13-14.  After continued unsuccessful efforts at conciliation and settlement, EEOC filed suit on behalf of Ms. Khan as Plaintiff-Intervenor. Id. at *15-16.

In litigation, Abercrombie raised a number of affirmative defenses, including that the EEOC failed to engage in conciliation in good faith, Id. at *19, that Abercrombie’s Look Policy is protected commercial free speech, Id. at *24, that accommodating Ms. Khan’s religious beliefs would constitute an undue hardship, Id., and that punitive damages and injunctive relief were not warranted, Id. at *46-47, *50.  Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the plaintiffs’ motion for summary judgment (and denied Abercrombie’s cross-motion) as to all of those issues, as well as to the issue of liability. Id. at *23-24, *41, *45, *50, *56.

Abercrombie did not dispute that the plaintiffs had established a prima facie case of unlawful discrimination. Id. at *29.  As to liability, setting aside the procedural issues about good faith conciliation and whether punitive and injunctive relief was available, Abercrombie based its defense solely on its undue hardship and commercial free speech defenses.

Abercrombie’s undue hardship defense was that the Look Policy was “key to Abercrombie’s success and/or that deviations from the policy ‘detract from the in-store experience and negatively affect [the] brand.’” Id. at 32.  Judge Gonzalez Rogers rejected that argument, as it was based only on the testimony of Abercrombie employees as to their “beliefs” based on “personal experience” about the effects of the Look Policy, and not on any hard data.  Id. at *35-37.  The Judge therefore found the employees’ “beliefs” to be “speculative and purely subjective in nature,” and that “[a] reasonable jury could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing [sic] wearing her hijab as she had been prior to February 2010.”  Id. at *38, *41.

Abercrombie’s commercial free speech defense, which Judge Gonzalez Rogers characterized as a “novel argument,” was that “the store associates should be classified as ‘living advertisements’ for [Abercrombie’s] brand and therefore their appearance is protected as commercial free speech.” Id. at *42.  The standard for a finding of commercial free speech was succinctly summarized by the Court as follows:

Commercial speech is that ‘which does 'no more than propose a commercial transaction.’’ Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)). The test for determining whether commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60, 66-67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (holding that the ‘combination of all these characteristics’ provided ‘strong support’ that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

Id. at *41-42.  The Court concluded that Abercrombie had not provided any authority to support its “novel argument”, and concluded that Abercrombie had failed in any event to satisfy the above standard to establish commercial free speech. Id. at *43. The Court based this decision primarily on the fact that the employees in question did much more than just purportedly “representing the brand,” given that “the employees’ responsibilities consist of ensuring shipments are complete, folding clothing, and placing/replacing clothing on the floor,” duties which were “primarily performed in the stockroom.” Id. at *44.  And, while the Look Policy restricted what employees could and could not wear, it did not require employees to wear only Abercrombie’s products. Id.

After also dispensing with Abercrombie’s argument about good faith conciliation, Judge Gonzalez Rogers granted the plaintiffs’ motion for summary judgment as to liability, “[t]here being no viable defense” thereto. Id. at *45.

As to Abercrombie’s arguments about the plaintiffs’ entitlement to injunctive relief, the Court explained the applicable standard as follows:

‘Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice.’ E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted). ‘[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). However, an injunction may be unnecessary where there is no reasonable expectation that the alleged violation will recur and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the ‘necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.’ W. T. Grant Co., 345 U.S. at 633.

Id. at *46. The plaintiffs sought an “injunction enjoining Abercrombie from engaging in practices which discriminate on the basis of religion, and an order that Abercrombie institute policies, practices, and programs providing employment opportunities for employees of all religions and which ‘eradicate’ effects of past unlawful practices”. Id. at *45.  Abercrombie opposed such an injunction, arguing that (a) Abercrombie had offered Ms. Khan unconditional reinstatement with the accommodation of wearing her hijab; (b) there was no threat of future, recurring violations, as Abercrombie had made “significant policy changes” since the events in question; and (c) the injunction was overbroad. Id. at *46-47.  The Court denied Abercrombie’s summary judgment motion on this issue, finding triable issues as to whether the changes in Abercrombie’s policies “completely and irrevocably eradicated the effects of the alleged violation.” Id. at *49.  The Court pointed to evidence that Abercrombie had changed its policies due to the instant litigation rather than because of the law, and on the fact that several of Abercrombie’s witnesses continued to believe that wearing religious headwear harmed Abercrombie’s image and brand. Id. at *49-50.  As to Abercrombie’s argument as to the breadth of the contemplated injunction, Judge Gonzalez Rogers concluded that the record was not sufficiently developed to determine that issue. Id. at *50.

Finally, the Court rejected Abercrombie’s summary judgment motion regarding the availability of punitive damages, finding that “[r]easonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.” Id. at *55.  As to Abercrombie’s anti-discrimination policies, the Court concluded that triable issues existed as to whether those policies were implemented in good faith, and that there was insufficient information in the record to determine whether deterrence or punishment would be necessary. Id. at *56.

 

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