January 30, 2015

Religious Objections to Biometric Scanning: Jury Verdict for Employee Is a Cautionary Tale for Employers

A Virginia federal jury recently awarded $150,000 to a miner who refused on religious grounds to use his employer’s biometric hand scanner that was installed to track attendance. Such scanners read each person’s unique hand characteristics and store that information to identify the individual in future scans. The employer adopted the scanner technology to replace traditional timekeeping methods and better ensure the company was accurately compensating employees for their time worked.

The Equal Employment Opportunity Commission (EEOC) brought suit on the employee's behalf after he resigned from his job, alleging that his employer failed to accommodate his religious beliefs. The employee, an Evangelical Christian, associated the scanning with the “Mark of the Beast” as described in the Christian Bible’s Book of Revelation. He asserted a genuinely-held religious belief against submitting either of his hands for scanning because such scanning would make him take on the Mark of the Beast. The Book of Revelation prophesies that those who receive the mark of the second beast shall be condemned to eternal damnation.

The employer argued that it provided a reasonable accommodation by offering to allow the employee to have only his left hand scanned, not his right hand. The employer based that position on its own interpretation of the Book of Revelation. It questioned whether the employee actually believed that the scanning system would give him the Mark of the Beast, or merely lead to technology that would do so, and challenged the employee to speak to his pastor or have his pastor write a letter regarding the church's interpretation of the Biblical language. The employee refused and asked if instead of hand scanning he could continue with the manual time recording system that had been in place prior to the scanning technology or use a traditional time clock. The EEOC asserted the employer’s offered accommodation was not a reasonable alternative because (1) the employee had a sincerely held belief against scanning of either of his hands, whether or not the employer agreed or whether that was the official position of his church or pastor and (2) the defendants allowed two employees who had missing fingers to key in their employee numbers rather than scan their hands, but did not offer that option to the plaintiff.

Following a three-day trial, the jury unanimously found that the employee objected to hand scanning based on a sincerely held religious belief and that the company violated the employee’s Title VII rights by not considering a reasonable accommodation in the form of an alternative method of tracking time and attendance. The jury also found that allowing the employee to manually record his time or use a traditional time clock as a reasonable accommodation would not have caused the employer undue hardship.

As employers increasingly use biometric technology for purposes such as facility security and time tracking, it is important to consider employees’ religious objections as well as any physical or medical conditions that interfere with normal use of a scanner, and offer reasonable accommodations. The employee first has a duty to inform his or her employer of any disability that requires accommodation (if it is non-obvious) or a “sincerely held” religious belief that conflicts with the employment requirement. If an employee professes a religious objection, employers should tread cautiously in challenging either the sincerity of the belief or whether the employee's particular belief is consistent with views of others of the same faith. Before denying accommodation based on either religious belief or disability, consider seeking legal advice to ensure that you have fully explored all reasonable options before just saying "no."

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