Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
Still Another Example of How Common Sense Can Get You in Legal Trouble
For lawyers who try to practice “preventive law” – that is, preventing claims, and not just litigating claims – employment law presents a daunting challenge. I can tell a client what to do, but, too often, my employment law advice seems counterintuitive, even nonsensical, and the client defaults to a common sense approach … right up to the time they get served with the lawsuit. Consider, for example, the problematic intersection between workplace requirements and religious beliefs.
The “Sincerely Held Belief” Rule
In 1975, Beverly Butcher began working as a coal miner for Consol Energy. In 2012, Consol implemented a high-tech system to better monitor employee work hours and attendance: at the beginning and end of each shift, each employee was required to place his hand on a scanner which would identify the employee by the shape of his hand, and clock the employee in or out.
Butcher was a devout, evangelical Christian and ordained minister. Based on his own interpretation of the Book of Revelations, he believed that using the hand scanner would result in his being marked with the “Mark of the Beast,” which brands followers of the Antichrist. Butcher offered to report into his shift supervisor or punch in on a time clock instead of using the scanner.
Consol provided Butcher with a letter from the scanner’s manufacturer, unequivocally stating that the scanner cannot detect or place a mark, including the Mark of the Beast. In addition, since the Mark of the Beast is associated only with the right hand or the forehead, Consol took the position that Butcher could use his left hand, which should be sufficient to negate any religious concerns. Butcher, however, based on no Biblical justification beyond his own unique interpretation, said he still believed that the scanner could brand him, and he refused to use it. Against that backdrop, Consol felt that it had the right to enforce its policies, and told Butcher that he would be disciplined unless he complied.
Butcher refused, and retired.
Here is the applicable (and counterintuitive) rule of employment law: employers must “reasonably accommodate” their employees’ sincere religious beliefs, even if those beliefs seem implausible or, for that matter, wildly irrational and baseless. I can imagine the scenario in which Consol’s attorneys explained the rule to Consol’s management. And I can imagine Consol’s “typical lawyer talk, that can’t be true” reaction and reversion to a common sense “you’ve got to draw the line somewhere” approach to the problem.
The EEOC brought an action on Butcher’s behalf, claiming that Consol had failed to properly accommodate Butcher’s religious beliefs. The case was tried before a jury in January of 2015. The result: Butcher was awarded almost $600,000 in damages.
Consol appealed, and on June 12, 2017, the Fourth Circuit Court of Appeals, one of the federal courts just below the Supreme Court of the United States, affirmed the verdict. The Fourth Circuit’s reasoning should sound an alarm bell for all employers.
Consol’s defense was based on common sense. It had allowed other employees to bypass the scanner because of physical injuries or conditions, but Butcher was being irrational. Butcher did not dispute the fact that the scanner left no physical mark, or the fact that, according to the Bible, the Mark of the Beast can be imprinted only on the right hand. Butcher had staked out his own, unique religious doctrine. Consol felt that it had been pushed too far.
Here’s how the Court responded to Consol’s position: “It is not Consol’s place as an employer, nor ours as a Court, to question the correctness or even the plausibility of Butcher’s religious understandings.” In other words, even though Butcher’s unique view differed from the established doctrine of his religion, it simply doesn’t matter. “So long as there is sufficient evidence that Butcher’s beliefs are sincerely held. . . that is the end of the matter.”
How Reasonable Does a Reasonable Accommodation Have to Be?
Consol stood purely on principal – it would have cost nothing to accommodate Butcher’s request and (in hindsight) perhaps it should have taken a more practical view of its workplace. The more difficult question is this: suppose an employee asks for an accommodation that costs real money or causes genuine inconvenience — what then? The law requires that an employer “reasonably accommodate” a religious conflict, but where is the line between “reasonable” and “unreasonable”?
The answer, which is really no answer at all, is that an employer is not required to undergo an “undue hardship” — but how bad must the hardship be before it is “undue”?
Here’s some good news… The same phraseology is used in the ADA context: employers must “reasonably accommodate” disabled employees, up to the point of “undue hardship.” But in the ADA context, employers are required to tolerate a significantly greater burden — in other words, an employer will have to go much further to accommodate a disability than it will to accommodate a religious conflict.
Still, there are difficult issues to surmount. Often, an employee will request a scheduling change based on a religious conflict, but what happens when the employee is in a key position and the employer cannot find a replacement? Often, employees request changes to dress and grooming standards on religious grounds. But what happens if dress and grooming is central to the image an employer needs to present to its customers? Often, employees will claim that their religion requires them to proselytize in the workplace, or to vociferously object to homosexuality or abortion. What happens when other employees are offended by this conduct?
This is another one of those “don’t try this at home” areas of employment law. From a preventive law perspective, the important point is to spot the red flag – that is, recognize when a religious conflict issue arises so you can get (and, hopefully, follow) competent legal advice, no matter how counterintuitive it may be, before it’s too late.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.