My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.
You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.
After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.
Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.
In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.
She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.
She asked for an accommodation.
The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.
They were unable to provide guidance on what alternatives there were under the state law. As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.
The fired employee then sued.
The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.
The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.
Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.
The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.
Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.
Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.
Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read. Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.
They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.
It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.