I don’t know the Book of Revelations. We didn’t read that in Vacation Bible School or in any church services I have attended. My scant knowledge of the sign of the beast, the antichrist, the significance of the number 666, and such matters comes from scary movies whose plot lines feature good and evil battling over the future of humanity. Which I don’t watch anymore. A recent case from the Fourth Circuit Court of Appeals held that an employer that would not accommodate an employee, who refused to participate in a compulsory electronic hand scanner system he feared would brand him a follower of the Antichrist, violated Title VII. EEOC v. Consol Energy, (2017 WL 2603976 (4th Cir. June 12, 2017)). Title VII requires that sincerely held religious beliefs be accommodated, unless so doing would cause the employer an undue hardship.
The facts are really interesting, and the reasoning in the opinion is a good reminder about how to handle religion in the workplace. Beverly Butcher began working as a coal miner for Consol Energy in 1975. In 2012, the company introduced a biometric hand scanner that linked the shape of the employee’s right hand to his unique personnel number. The company started requiring employees to “scan” in and out before and after shifts, rather than using the old time-card method. Mr. Butcher was an evangelical Christian and an ordained minister who believed that using the scanner would brand him with the “Mark of the Beast,” as a follower of the Antichrist.
Mr. Butcher met with the mine superintendent and his supervisor and presented two letters, one from his pastor which described Mr. Butcher’s “deep dedication to the Lord Jesus Christ,” and his own letter explaining his view that the scanner would associate him with the Mark of the Beast, the antichrist. Mr. Butcher made the reasonable suggestion that instead, he would simply check in with his supervisor or continue to use the time clock when he began and ended his shifts.
The company’s response was interesting and, although not unreasonable, it was unlawful. The supervisor and superintendent provided Mr. Butcher with a letter written by the manufacturer of the scanner explaining that it could neither place or detect a mark on the body of a person (including the Mark of the Beast), and that because the Mark of the Beast was only associated with the right hand or the forehead, an employee could use his left hand and thereby avoid any religious concerns. They asked Mr. Butcher to review the letter with his pastor and, if he had continued objections, provide a letter detailing those objections.
Around the same time, but unknown to Mr. Butcher, the company had authorized two injured employees to bypass the scanner and instead key in their personnel numbers, set forth in an email dated July 25, 2012. In that same email, Consol denied that accommodation to Butcher, stating “Let’s make our religious objector use his left hand.” When Mr. Butcher refused to use the scanner, the company told him he would be disciplined. He retired. The EEOC sued on his behalf, alleging that Consol had violated Title VII by failing to accommodate his religious beliefs and had in the process constructively discharged him—when your employer makes things so unbearable that no reasonable person should have to continue working. Ultimately, he won over half a million dollars. Ouch. That was expensive. I’ll bet they wished they had let him key in his number instead.
Here’s why he won and what religious accommodation means.
- To show a violation of the “reasonable accommodation” requirement under Title VII, an employee must prove that he:
- has a bona fide religious belief that conflicts with an employment requirement;
- informed the employer of this belief; and
- was disciplined for failure to comply with the conflicting employment requirement.
- Butcher clearly laid out his religious objection to using the scanner, even though it would produce no physical mark. There was ample evidence that Butcher sincerely believed using the scanner, with or without a tangible mark, was a showing of allegiance to the Antichrist, inconsistent with his religious convictions. That is sufficient to establish the required conflict between Butcher’s religious beliefs and Consol’s insistence that he use the scanner.
- It is not Consol’s place as an employer to question the correctness or plausibility of Butcher’s religious understandings. This, I think is the tricky part. Confusing at least. Butcher’s religious beliefs are protected whether his pastor agrees with them.
- Consol cannot argue that the requested accommodation would not be feasible, or would impose an “undue hardship” on its operations, because it had provided precisely that accommodation to two other employees who needed it for non-religious reasons. Also, the email was really bad evidence.
- There was substantial evidence that Butcher was put in an intolerable position when Consol required him to use a scanner that he sincerely believed would render him a follower of the Antichrist. Seems like there are a lot of movies out there that make this clear. Scary ones.
So here are my thoughts on why what Console did wrong can be tricky. Mr. Butcher’s belief that using the scanner could brand him as a follower of the Antichrist, if you subject it to some logic, seems a little off base. The letter from the manufacturer is kind of a weird way to establish the flaw in his logic, but asking his pastor to weigh in on the matter seemed reasonable to the company—but it was unlawful. Because when an employee’s religious belief is sincerely held (and trust me, this is not always an easy question and you need able legal counsel to guide you here), you don’t get to second-guess the belief. Here, Consol wasn’t entitled to doubt whether Mr. Butcher had a good grasp of Revelations. And as a practical matter, because it was easy to permit him to key-in his personnel number like the two injured employees, that should have been the solution to the problem. Certainly less expensive.
I can imagine concerns that aren’t discussed in the case like not wanting to set a precedent, maybe Mr. Butcher was a wisecrack close to retirement who behaved in an entitled manner, or perhaps he displayed other behaviors that called into question even his adherence to his beliefs; those just aren’t provided to us. It cost Consol $600,000 plus whatever it paid to its own lawyers in fees. In the end, Butcher went Beast mode on his employer.