AN EMPLOYER’S DUTY TO ACCOMMODATE NOT SO-COMMON RELIGIOUS PRACTICES

Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.

Recently, the United States District Court for Western District of Pennsylvania, as well as the Court of Appeals for the Fourth Circuit, have addressed accommodating the religious practice known as the “mark of the devil” or the “mark of the beast.” In both instances, the Courts held that the employee’s allegations were sufficient to establish a sincerely- held belief in the religious practice.

In Kaite v. Altoona Student Transp., Inc., the employee worked as a school bus driver and refused to have fingerprints taken because she believed that fingerprinting was the “mark of the devil” and if she submitted to it she would not get into heaven.  The employee asked for an accommodation in the form of a different type of background check that did not include fingerprinting.  The employer refused and terminated the employee’s employment for failing to comply with the State’s background check law.

The United States District Court for the Western District of Pennsylvania rejected the employer’s attempt to dismiss the case, holding that, at least at the motion to dismiss stage, the employee had sufficiently alleged a prima facie case of religious discrimination.

To establish a prima face case, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  Once the employee establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”  Here, the employee stated that (i) she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” and would prevent her from going to heaven; (ii) this belief conflicted with her job requirement that she undergo a background check; (iii) the employer was aware of her sincerely-held religious belief; and (iv) the employee subsequently was terminated for failing to comply with the fingerprinting requirement. This was enough to overcome a motion to dismiss.

Similarly, in EEOC v. Consol Energy, Inc., the employer implemented a biometric hand-scanner system for the purpose of requiring employees to check in and out of work.  The employee refused to use the a scanner because of his religious belief that the use of the scanner was the “mark of the beast.”  The employer refused to accommodate the employee’s religious belief, although the employer accommodated others who could not use the hand scanner for non-religious purposes.  The EEOC brought suit on the employee’s behalf, which went to trial.  The jury returned a verdict for the employee totaling $586,860.00 ($150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits).  The Fourth Circuit Court of Appeals affirmed the District Court’s ruling denying the employer’s motion for a new trial and motion for judgment.

Both of the cases illustrate an employer’s need to be tolerant in accommodating all religious practices, not only those that are considered more mainstream. Employers should remember that demonstrating a sincerely-held belief is typically a “low bar,” and most employees likely will be able to establish this element of their claim.

Moreover, these cases serve as a reminder that, when making determinations regarding accommodating religious practices, the company should:

  • Review whether it has made exceptions for non-religious reasons; and
  • Consider the actual hardship to the employer in accommodating the employee’s request.

Kali T. Wellington-James