By Meghan Droste, February 10, 2021

This month, we continue our look at religious accommodations. As I mentioned last month, while there are some similarities with accommodating disabilities, there are ways in which responding to a request for religious accommodations may differ. One way is what you can and can’t ask in terms of determining whether an employee is entitled to an accommodation. While it is relatively common to need documentation to establish that someone has a disabling condition that impacts the ability to perform the essential functions of the position, things are a bit different when it comes to religious accommodations.

If an employee requests accommodation for a religious belief or practice, the request needs to include an assertion that the employee has a sincerely held religious belief or practice that is tied to the need for the accommodation. I often get questions in classes about what an agency can do to determine this.  Can you ask for more info?  Can you push back when the belief or practice seems “strange” to you?  Let’s look at one of my favorite cases to illustrate some of these issues …

EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) comes to us from the private sector, but is a great example. The Commission sued on behalf of an employee, Mr. Butcher, at a mine in West Virginia.  In 2012, the mine implemented a biometric hand-scanner to monitor employee attendance. Mr. Butcher objected, stating his belief that the hand-scanner represented the Mark of the Beast. He asked to be exempt from the requirement of using it. The company provided printed information from the manufacturer of the scanner stating that it did not place the Mark of the Beast on anyone. The manufacturer suggested that using one’s left hand should alleviate any concerns because, in its interpretation of Scripture, the Mark of the Beast would only appear on one’s right hand. Mr. Butcher objected and again asked to sign in and out in another manner because he believed using either hand would violate his understanding of his faith. The company refused to provide other accommodations and reminded him of its progressive discipline policy—within three times of refusing to use the scanner, Mr. Butcher would be fired. He chose to retire instead and then contacted the EEOC.

At trial, the company tried to defend its position by saying the Mr. Butcher’s own pastor disagreed with his interpretation of whether the scanner would leave the Mark of the Beast. Counsel for the company began oral arguments before the appellate court by quoting from Scripture, in an apparent attempt to show that Mr. Butcher’s position on the Mark of the Beast was wrong. None of this mattered though. As the lower court and then the Fourth Circuit concluded, it was Mr. Butcher’s belief, and not the beliefs of his pastor, his employer, or the manufacturer of the scanner, that mattered. Mr. Butcher believed that using the scanner would be a violation of his sincerely held religious beliefs and the inquiry should have stopped there.=

(Fun fact: The company was providing accommodations to employees who could not use the scanner for physical reasons at the same time that it denied Mr. Butcher’s request.)

What does all of this mean? If you find yourself starting to question a person’s religious beliefs, not because you think they don’t actually believe them, but because you don’t share the same beliefs, you’re probably starting down the wrong path. [email protected]

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