Mark of the BeastBack around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!

Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally.

First, the employer argued that there was not sufficient evidence to support the jury’s finding that the hand scanner policy conflicted with the employee’s sincere religious belief – that his “religious concern dealt with the unknown future of technology” (now that’s a scary proposition!). The court quickly rejected this argument, finding that there was plenty of evidence that the employee believed the scanner policy collected personal information that would be used by the Antichrist, and using the system was a pledge of allegiance to the Antichrist. As we noted in our last blog, an employee’s religious belief doesn’t have to be logical or reasonable – it just has to be sincere. And if it is, then the employer must provide a reasonable accommodation (yes, even for an unreasonable belief), if available.

The employer also argued that the employee was not constructively discharged because he had other ways of responding to the hand scanner policy – specifically he could have filed a grievance with his union and requested arbitration under its collective bargaining agreement with the employer, had he remained employed and ended up being fired for refusing to comply with the scanner policy. The court, however, found that the grievance procedure was irrelevant to whether the employee had been constructively discharged. The employer was aware of reasonable accommodations but refused to provide them, which made the employee’s working conditions intolerable. Thus, the constructive discharge took place before any grievance process would have applied. The court also noted that Title VII requires an employer to provide a reasonable accommodation when requested, not to wait until an arbitrator orders it to do so through a grievance process! The court further observed that “arbitrating a claim for failure to accommodate could never serve as an accommodation.” So the lesson here is that unionized employers should not look to any grievance procedure under the CBA as a part of the accommodations process.