No Request is Too Small for Your HR Department

Thursday, 06 July 2017 18:36 Written by  Patricia Collins

I hear a lot of interesting stories in my line of work:  there are as many interesting employment law problems as there are interesting people, which is to say, a lot.  A recent opinion from the United States Court of Appeals for the Fourth Circuit encapsulates this variety nicely, and serves as a reminder not to disregard unorthodox employee requests.

In EEOC v. Consol Energy, the Equal Employment Opportunity Commission sued Consol Energy on behalf of one of Consol’s employees, Beverly K. Butcher.  Mr. Butcher worked diligently for Consol Energy for 37 years when his employer decided to install a biometric hand scanner to track employee attendance.    Consol required each employee to have his or her hand scanned, and then, upon entering or departing the workplace, required the employee to wave the hand over the scanner.  

Mr. Butcher identifies as a devout evangelical Christian.  While the hand scanner seems like a fairly innocent and efficient way to track employees, Mr. Butcher did not see it that way.  Mr. Butcher’s faith informed his belief in an Antichrist, whose followers are condemned to everlasting punishment.  The followers of the Antichrist are identified by the Mark of the Beast.  Mr. Butcher feared that the use of the hand scanner would result in his receiving the Mark of the Beast.  No one disputed that Mr. Butcher’s belief were sincerely held.  Indeed, Mr. Butcher resigned rather than submit to the new hand scanning rules, after his employer failed to accommodate his request.

The EEOC sued on Mr. Butcher’s behalf, arguing that the failure to accommodate Mr. Butcher’s sincerely held religious belief violated Mr. Butcher’s civil rights.  A federal jury in West Virginia returned a verdict in excess of $550,000 in Mr. Butcher’s favor, finding that Consol had constructively discharged Mr. Butcher in violation of his rights to accommodations for his religious beliefs.   For want of a simple accommodation, Consol Energy risked a verdict in excess of a $550,000, not to mention the related legal fees and expenses.  Interestingly, Consol does not appear to have offered any operational reason for its failure to accommodate: other employees were permitted to clock in by entering their personnel numbers into a keypad, without additional cost or burden to the company.  Indeed, email produced in the case seems to indicate that the employer was scoffing at the religious objection.  

It would have been cheap and easy for Consol to accommodate the request.  The failure to do so appears to be based on a judgment about the validity of the request.  This type of fact pattern presents itself often in many contexts:  religious accommodations, disability accommodations, requests for medical leave.  It is easy, as Consol Energy appears to have done, to disregard requests as “kooky” or “odd.”  This is a mistake.  If the accommodation is not needed, or is overburdensome, or is not based in fact, that will come out in the accommodation process.  The danger lies in not following the process that such a request, however strange, requires.  Certainly, it is well worth the effort in the beginning to avoid the stress and expense of litigation later.

Last modified on Thursday, 06 July 2017 18:41
Patricia Collins

Patricia Collins

Patty has been practicing law since 1996 in the areas of Employment Law, Health Care and Litigation, with extensive experience in advising employers and health care providers as well as complex litigation in federal and state courts. Patty’s knowledge of employment law includes the Employee Retirement Income Security Act; federal and state employment discrimination laws, and employment contracts and wage claims.

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