Beastly Decisions

There was story on the General Counsel website this week about a Fourth Circuit Court of Appeals decision on a religious discrimination case that was so stupid that I felt it deserves repeating. The original case was about a mining company employee who was refusing to use the company’s new biometric scanner to clock into and out from the job, claiming that this would be the equivalent of accepting the “Mark of the Beast” from the Book of Revelation. By itself this would probably be a non-story – a person’s religious beliefs are what they are, and as long as they aren’t proselytizing on company time or otherwise disobeying their supervisor’s instructions no one else will (or should) care. The company should still offer some accommodation, especially if they can easily do so (they could) and even more especially if the employee has provided long and valuable service to the company (the employee in question has been on the job for 37 years). None of that is what puts this story into the “stupid” category, however…

What is really absurd about this story, and is also the reason that the employee appears to have won his case on appeal, is that the company had already made accommodation for other employees who were unable to use the biometric system. Granted, the other employees were unable to use the biometric scanner because of injuries to their hands, not because of their belief system, but given that the company already had a numeric keypad for the other employees to use, it’s difficult to understand why they couldn’t have added a third identification code to the keypad and allowed the religious miner to use the same accommodation. Or, more to the point, perhaps, why they felt it was worth spending the money on a Federal court case, not to mention risking negative publicity on the Internet and mockery from thousands of scruffy bloggers, just to avoid adding one more identification code…

Now, we should probably acknowledge that we don’t know why the biometric sensor system was considered a good idea in the first place. If it is somehow harder to falsify attendance using the biometric system than it would be using a traditional time-clock system then it is understandable that the company would want its employees to use the new system, and equally understandable that they would not want every employee who wants to be able to game the system asking for an accommodation for various made-up reasons. But unless these problems are very wide-spread within the company, and the economic impact of all of the timekeeping falsification is extremely high, it’s hard to imagine that the benefit of using the system will be that much more effective than just having supervisory personnel verify attendance…

The big problem with making exceptions to any business policy is that once you have done so it becomes geometrically harder to explain why each additional request for an exception should not also be granted, until the rule becomes unenforceable due to more people being exempt from it than are still governed by it. This is why schools have zero-tolerance policies on weapons and drugs, and why companies are obliged to enforce patents and copyrights even in cases when they know the violations will never have any real impact on their business. It’s also why, in most jurisdictions, judges and magistrates are given discretion regarding sentencing for various offenses. But as with any other slippery-slope argument, there’s a real chance that applying one set of rules without exception in every possible case will result in outcomes even more absurd – and even more potentially damaging to the company – than not having those rules in the first place…

Traditionally, the only practical way to deal with the exceptions problem is to have very clear, and very exclusive, reasons for any accommodation being granted. For most businesses, schools, and government agencies, the Americans with Disabilities Act (ADA) spells out exactly what is and is not acceptable – which can be extremely useful in settling this type of situation. Outside of ADA sanctions the supervisory manager on the spot is going to need to establish company-specific and situation-specific exceptions, but this can be accomplished fairly. In this particular case, most people would be okay with an exception being made for ordained ministers from a sect that believes that biometric scanner profiles are equivalent to the “Mark of the Beast,” provided that they have worked for the company for 37 or more years at the time the accommodation is made…