“Mark of the Devil” Reappears  

Not long ago I reported about a case that may soon be heard by the Supreme Court: a religious discrimination suit brought by the EEOC against a Pennsylvania coal company for refusing to accommodate (and forcing to retire) an Evangelical Christian who had been an employee for 35 years.

Initially I wondered – an employee for 35 years and suddenly a problem involving his religious beliefs?

It seems that the employee refused to submit to a newly-installed biometric hand scanner which tracks employee time and attendance (a device which is becoming more commonly used, and seen, for example, in FLSA cases).

So why did he refuse?

He claimed that there was a “relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament.”  He claimed that using a biometric hand scanner violated his religious beliefs.

His religious beliefs hadn’t changed – technology had.

New Decision

A Court just came down with a decision in a similar case refusing to dismiss a complaint by a Pennsylvania school bus driver with 15-years tenure alleging that she was fired for refusing to provide her fingerprints as part of a criminal background check – based upon her religious beliefs.  It seems that a new state law required her to submit to a criminal background check, including fingerprinting.

So why did she refuse?

She claimed that she “believes that the Book of Revelation prohibits the ‘mark of the devil,’ which she believes includes fingerprinting, and that she will not get into Heaven if she submits to fingerprinting.”

So they were fired because of sincerely held religious beliefs that biometric scanning and fingerprinting are the “mark of the devil.”

The facts are different, the religious beliefs the same (and the fact that both were in Pennsylvania likely coincidence) but the fact that both employees proposed non-burdensome alternative testing is key.

Accommodation Without Undue Hardship

In the earlier case, the long-tenured employee asked for an exemption from biometric hand scanning but was denied – the EEOC said that “The mining companies refused to consider alternate means of tracking [his] time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers.”

Ultimately the EEOC was awarded a unanimous jury verdict and an award of $586,860, which was upheld by a federal appeals court which “agreed with the district court that … [t]he evidence presented at trial allowed the jury to conclude that [defendant] failed to make available to a sincere religious objector the same reasonable accommodation it offered other employees, in clear violation of Title VII.”

And now he may have a date with the Supreme Court.

In this new decision, the bus driver requested an accommodation – an alternative to finger-printing – but the employer told her there were no accommodations available.  She was fired.  She claims now that the employer permitted at least one other driver with “unreadable” fingerprints to continue working when an alternative was not available.

Takeaway:  An EEOC attorney said after the jury verdict in the hand scanning case that “In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs. Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.”



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]