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Monday, December 1, 2014

Headscarfs and Hand Scanners on Court’s Gift List

By: Tommy Eden

Abercrombie & Fitch’s religious headscarf battle headed to the United States Supreme Court in early October. Its stringent “Look Policy” dress code has come under fire in several cases from employees who say they were disqualified from getting, or keeping, a job because they wanted to wear a hijab, or headscarf. 

The Equal Employment Opportunity Commission (EEOC) filled suit on behalf of Samantha Elauf, a Muslim woman who was denied a job as a salesperson at an Abercrombie Kids store in Tulsa, Oklahoma, because she wore a headscarf at her job interview. However, Elauf didn't specifically say that she wanted a religious accommodation to wear it while working. A Federal District Court ruled in her favor, but an appeals court reversed the decision, holding that Elauf had to explicitly ask for religious accommodations. Look for Elauf to get her scarf back by Christmas.

In another case, Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner for purposes of identification and time clock tracking.
Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he meet with his manager and stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning providing his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible. He requested an exemption from hand scanning because of his religious belief.
At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.
Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning. At least two persons employed at the Mine had been permitted exemptions from biometric hand scanning due to missing fingers.
Last month the EEOC filed a Motion for Summary Judgment seeking a judgment for religious discrimination in its suit filed on behalf of filed Butcher in West Virginia U.S. District Court. Consolidation Coal last week urged the court to reject the EEOC's bid for summary judgment and instead grant judgment in its favor. Good chance Butcher will win this Bible sword drill.
Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing tasteful religious attire, flexible scheduling, voluntary swaps or modification of login requirements. All an employee needs is a strongly held religious belief to make such a request. I do not think the employer has a prayer in either case.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at