Reprinted with permission from the June 21st edition of The Legal Intelligencer. (c) 2019 ALM Media Properties. Further duplication without permission is prohibited.
In Fort Bend County v. Davis, 587 U.S. ___ (2019), the Court held that the requirement that a plaintiff in an employment discrimination case brought under Title VII, 42 U.S.C. § 2000e, et seq, file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) prior to filing a complaint in court is a procedural and not a jurisdiction requirement. Therefore, an employer’s failure to assert the absence of an appropriate charge of discrimination in a motion to dismiss results in a waiver of the defense. The Supreme Court’s decision resolves a split in the circuits regarding whether the requirement is jurisdictional, and highlighted the importance of the charge of discrimination and the motion to dismiss in employment discrimination cases.
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.