Driver who refused fingerprinting as ‘mark of the devil’ states religious bias claim

By Joy Waltemath

By Marjorie Johnson, J.D.

A school bus driver who was denied her request not to undergo legally mandated fingerprinting due to her religious belief that fingerprinting was the “the mark of the devil,” while a coworker with “unreadable” fingerprints was purportedly allowed to undergo an alternative background check, plausibly alleged claims of religious discrimination and retaliation arising from her subsequent discharge. Denying the employer’s renewed motion for judgment on the pleadings, a federal court in Pennsylvania ruled that discovery was necessary to make the factual determinations as to whether her preference not to be fingerprinted was a “religious belief,” whether the employer (as opposed to a governmental entity) imposed the fingerprinting requirement, and whether granting her accommodation request would have posed an undue hardship (Kaite v Altoona Student Transportation, Inc., October 30, 2017, Gibson, K.).

“Mark of the devil.” After almost 15 years on the job, the driver was informed that, in accordance with a newly enacted state law, she would have to undergo a background check that included being fingerprinted. She responded by informing her employer that according to her sincerely held religious belief, “the Book of Revelation prohibits the ‘mark of the devil,’” which she believed included fingerprinting. Therefore, she believed, she would “not get into Heaven” if she was fingerprinted.

Denied request and terminated. The employee asked to be allowed to undergo a different type of background check that did not require her to be fingerprinted. The employer denied her accommodation request and terminated her for failing to comply with state law’s fingerprinting requirement. However, she claimed that at least one employee with “unreadable” fingerprints was allowed to undergo an alternative background check that did not require fingerprinting. She brought this lawsuit asserting religious discrimination and retaliation under Title VII and the Pennsylvania Human Relations Act.

Plausible bias claim. Accepting the driver’s allegations as true, the court determined that she alleged a plausible claim of religious discrimination. Specifically, she stated that she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” that would prevent her from going to heaven, and that this belief conflicted with her job requirement that she undergo a background check. She informed her employer of her sincerely held religious belief and was subsequently terminated for failing to comply with the fingerprinting requirement.

“Religious” belief. The employer asserted that the driver’s preference not to be fingerprinted was not a “religious belief” since the Third Circuit defines a “religious” belief as one that an employer can accommodate without undue hardship. The court rejected this contention. Though the employer vehemently argued that not fingerprinting her would pose an undue hardship, such an argument was premature and required further factual development.

Who failed to accommodate? The employer also argued that the driver’s claim should be tossed since the fingerprinting requirement was imposed by Pennsylvania’s Child Protective Services Law (CPSL) and the employer lacked the power to grant exceptions or exemptions. The decision to deny her an accommodation was made by other governmental entities with whom it had consulted when she first made the accommodation request. However, whether the employer or some other entity made the decision to deny her request could not be determined without additional information, the court said. Moreover, at this stage the court was required to accept all of her allegations as true, regardless of the employer’s contrary version of events.

Undue hardship a fact issue. It was also too early to decide whether the employer met its burden to prove undue hardship since it could have been subject to criminal liability for violating the CPSL. The company asserted that it had consulted various governmental entities in a good-faith attempt to accommodate the driver and, through those inquiries, determined that granting her request would have subjected it to an undue hardship. However, the cases upon which it relied for the proposition that violating a statute constitutes an undue hardship were inapposite because they were decided later in the litigation process. Thus, this issue also required factual development and judgment on the pleadings was inappropriate.

Too early to toss retaliation claim. Finally, it was too early to determine whether the employer established that it terminated the driver for a legitimate and nonretaliatory reason: its good-faith attempt to comply with the CPSL. Notably, the driver did not allege that anyone other than the bus company made the decision to deny her accommodation and terminate her. Rather, only the employer contended that it contacted various governmental entities in a good-faith attempt to accommodate her, but concluded through those conversations that that it could not do so without subjecting itself to an undue hardship. Since the court could not weigh the veracity of the employer’s alternative facts at this time, dismissal would be premature.

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