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WORKPLACE LAW LOWDOWN | Dealing With "Me" In The Workplace

By: Donald H. Scharg

06/29/17

Some studies have identified over 124 different religions practiced in the United States.  These religions range from tens of millions of adherents to as few as 10.  But, when responding to requests for accommodation for religious practices, the size of the congregation is irrelevant.  The wrong answer to the employee who belongs to a 10-member tribe can create as much liability as the wrong answer to an adherent of a major religion.

Employers are constantly told that they can avoid discrimination claims by treating similar situations the same. Religion is different.  When addressing religious accommodation requests, the employee is basically saying, “I don’t want to be treated the same as other employees; I have a good reason for being treated differently than any other employee in the workplace.”  In some cases, the employer is required to provide an accommodation, without more than a de minimis cost, and treat the employee differently. 

Some accommodation requests are relatively benign and easy to address; some are more strident or difficult:

  • What are the employer’s obligations to applicants who refuse to provide a social security number based on sincerely held beliefs that the social security number represents the Mark of the Beast?
  • How does the service industry employer respond to the employee who requests Easter Sunday off from work so the employee can spend Easter at home, sharing meals and praying with the family, and going on an Easter egg hunt? Missing work for an Easter egg hunt; is that simply a personal preference or is it a deeply held religious belief?
  • Does an employer have an obligation to provide employees with a place for daily prayer?

These examples may seem far-fetched, but they are from actual court decisions.

In a recent case, a long-term employee who was a devout evangelical Christian refused to use biometric hand scanning technology for time-keeping purposes.  He feared using the scanner would result in his being marked as a follower of the Antichrist.  Hoping to resolve the issue, the employee offered to check in with his shift supervisor or to punch in on a time clock, as he had in the past.  Rejecting these options, the employer tried to convince the employee that he would not be marked if he allowed his left hand to be scanned.  The employee was not convinced.  When the employer offered no other alternatives, the employee felt compelled to take an early retirement and filed a religious discrimination charge with the EEOC which pursued a lawsuit on the employee’s behalf.

 The subsequent trial concentrated on the employer’s obligation to provide an accommodation to the religious objection.  It came out at trial that the employer provided an accommodation to other employees with hand injuries that allowed them to bypass the scanner system altogether. These employees were allowed to enter their personnel numbers on a keypad attached to the system.  This accommodation, which was not offered to the employee with the religious objection, was cost-free.

With evidence of an easy and no-cost accommodation, the employer lost at trial.  The court awarded the employee $436,860.74 in front and back pay and lost benefits.  This award was affirmed on appeal in EEOC v. Consol Energy, Inc. (4th Cir. 2017).

Key Take-Away

Employers must act carefully when faced with religious accommodation issues in the workplace. They must engage in a good faith effort in the search for an accommodation before rejecting the employee’s request.  The employer must correctly answer the question in order to avoid liability.  Guessing is not an option.

Case: EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).