WHO TITLE VII COVERS--
Title VII provides protection for nearly all employees. Private employers with fifteen or more employees are covered, state and municipal employers are covered and all labor unions who have fifteen or more members are covered. 1
WHEN TO ACT UNDER TITLE VII--
Before spending time exploring what to do and how to do it under Title VII, consider the very short time limits imposed by Title VII. The only way in which an employee can claim his rights under Title VII is to first file a charge with the Equal Employment Opportunity Commission (EEOC). 2 An employee can be sure that he has filed a timely charge if he files it within 180 days of the date of discrimination.3 In some situations (which turn on state law) this time period is stretched to 300 days. Unless the act of religious discrimination is continuing in nature, if it occurred more than 300 days4 before the employee files his charge, the charge is untimely and will not be considered favorably by the EEOC. 5 Without going into the complex issues concerning the necessary state law requirements, as a general rule, if the act of discrimination occurred between the 180- and 300-day periods, a charge should be filed. A charge should be filed because it is quite common that the 300 day period is applicable.6
THE NECESSARY STEPS TO WORKING OUT THE TITLE VII PROBLEM--
Step 1: Decide what you believe.
When the union or your employer comes to you and demands that you join the union or pay a union fee, hopefully, you have already formed your religious beliefs about joining the union. It is very important for you to carefully consider your religious beliefs.
Title VII protects religious beliefs. It does not protect political or philosophical beliefs. Although there is great room for debate over what constitutes protected religious belief, as a practical matter the more "traditional" and the more "strongly held" the belief, the more likely it will be protected. A mere religious preference may not be protected. Fiercely examine your beliefs now, because if you get into litigation you can be sure that the lawyers for the union or the employer will be closely looking at those beliefs. You do not want to be carefully considering your beliefs for the first time when you are being grilled, under oath, by a hostile lawyer where every word that you say is being recorded.
To determine whether your beliefs are religious instead of political or philosophical, ask yourself whether your beliefs are based upon your obligations to God. Do you simply dislike unions or hate this particular union's politics' Or, does your desire to stand apart from the union arise from your relationship to God" If your beliefs arise from your decision to obey God, they are religious.
While no court has specifically held that Title VII protects only religious beliefs as opposed to religious preferences, courts repeatedly write about the requirement that there be a conflict between the employee's religious beliefs and a work requirement. If you have only a religious preference, a court might hold that there is no real conflict.
An important part of evaluating your religious beliefs is deciding what will eliminate the conflict between your conscience and the union fee requirement. Let's look at this in the context of a situation that is especially common for public employees.
Joe Believer, who teaches in the local public schools, is told that he must join the teachers' union or pay a fee to the union. The local teachers' union has both a state and national affiliate. The union fee goes to support all three levels of the union, and the majority of the fee flows up to the state and national affiliates. The state and national affiliates spend time and money lobbying in favor of abortion and homosexual rights. This creates a conflict of conscience for Joe Believer.
Joe should ask himself: "What will eliminate the conflict?" Would the conflict be ended if the cost of this lobbying were calculated and the union and its affiliates reduced the union fees by that amount?7
If just separating out the expenses for the offending activities does not eliminate the conflict, what will" Since it is the state and national unions which are involved in the activity, would the conflict be eliminated if the local union kept all of Joe's fee and agreed that none of it would be sent to the affiliates' If this does not eliminate the conflict, would the conflict be eliminated if Joe's entire union fee were sent to a charity?
You must decide exactly what it will take to eliminate the conflict with your conscience.
Step 2: Tell the union and employer about your religious beliefs.
Now that you have determined the nature of your religious beliefs and decided what it will take to eliminate the conflict between your conscience and the work requirement, tell the union and your employer. The courts require, as does common sense, that you inform the union and employer about the conflict.8
The best way to do this is to write letters to the union and the employer so that there will be no dispute about what you said. These letters are extremely important for several reasons. First, it informs the union and employer about your religious beliefs. You must state your beliefs accurately, because if you appear to change them later, you will look dishonest. Second, it gives you an opportunity to motivate the union and employer to be interested in working out the problem. Last, if the dispute ultimately gets into court, this will be a critical piece of evidence from which the judge may get a first (and lasting) impression of you.
The tone of your letters must be to persuade the union and employer to honor your religious beliefs. The letters must not condemn, confront or condescend. If you are able to persuade your employer and union to work out a solution now, it will spare you grief later.
A good format for the letter is to first describe the offending work requirement, and then briefly state that this requirement is in conflict with your sincere religious beliefs. Next describe your religious beliefs in detail. If your beliefs are based on the Bible, you should cite the specific chapter(s) and verse(s) that form the basis for your beliefs. If your beliefs are based on some other authority, such as a church doctrine, then recite the authority in some detail. This is no time to be shy about telling others about your beliefs.
If your religious beliefs have made a practical difference in your life, it is helpful to work that into your letter in a modest way. Unions are often suspicious that an employee "got religion" to avoid having to pay fees to the union. Anything that helps to dispel that suspicion is helpful. Use common sense in describing what you do that tends to show that your religious beliefs make a practical difference in your life. For example, if your union is an active pro-abortion lobby, and your religious objections arise from that fact, you should not describe in detail all of the work you have done on the anti-abortion side of the issue. If you do, it appears that you are in a fight with the union, which does nothing to persuade the union to honor your request. (Do not worry, if the union will not honor your request, you will have plenty of opportunity to fight later.)
Your letter should ask that the union and employer attempt to accommodate your religious beliefs. Then suggest an accommodation. If you are willing to pay all of the fees to the local (but not the state and national affiliates) as an accommodation, suggest that. If you are willing to pay the fees to a charity, then suggest a few charities to which you would be willing to contribute. As a general rule, the courts do not permit the charity to be either a religious or a labor charity.
Your suggested charities can play a critical part in persuading the union to accommodate your beliefs. Does the union president have a close relative that died or suffers from some sort of disease" If so, name a charity that does research on that disease. If your union represents a certain profession, suggest a charity that helps that profession or a group that is of special interest to that profession. Avoid naming a charity that will anger the union. If you object to the union's pro-abortion position, do not suggest Operation Rescue as a charity. While this guide was made possible by the National Right to Work Legal Defense Foundation, which is a qualified charity under IRS code 501(c)(3), it would not be prudent to suggest the Foundation as your charity.
Although you should suggest the accommodation you desire, keep in mind that if there are a number of potential solutions that will preserve your conscience, the union or employer has the right to choose among the solutions.9
This is no time to be stingy about postage or making copies. You should send your letter to every party who has the authority to accommodate your religious beliefs. For example, if you have religious objections to joining or financially supporting the union, send your letter to the local union president and a copy to the president (or general counsel) of every higher up level of the union which gets part of your union fees. You should also send a copy to every "boss" working for your employer who you think has the authority to accommodate you. To be safe, send your letters certified, return receipt required.
Step 3: Cooperate in working out a solution.
After an employee tells the union and employer about the conflict with his religious beliefs, the employer and union are required to try to work out a solution to the problem. While the law places the initial burden of trying to work something out on the employer and union, common sense (and some case decisions) requires you to do everything in your power to cooperate with them and to try to figure out a compromise that will not compromise your conscience.
Among the legal defenses available to the union and employer, is one called the "undue hardship" defense. The undue hardship defense merits a comment. The law releases the union and employer from accommodating your religious beliefs if the accommodation would create an "undue hardship" for them. Unfortunately, the Supreme Court has decided that "undue hardship" should be interpreted to mean a minimal cost.10 Considering this low standard, it is very important for you to work hard to find a solution that will create the very least amount of inconvenience or cost to your employer or the union.
1 There are some limited exceptions to the list of covered employers. These exceptions include the United States and corporations owned by the U.S., Indian tribes, certain employees of the District of Columbia and tax-exempt private clubs. An employer with less than fifteen employees may be covered by a state anti-discrimination law. (back to text.)
4 Id. (back to text.)
5 EEOC Compliance Manual § 605.5. (back to text.)
6 Whether the time period is extended to 300 days depends upon whether a state or local agency has authority to "grant or seek relief" or "institute criminal proceedings" to stop the religious discrimination or force an accommodation. Although it is beyond the scope of this guide to detail which states qualify, EEOC regulations found in 29 CFR § 1601.74 list the qualifying agencies. Among those listed, forty-seven are state agencies. BNA's Fair Employment Practices Manual at 451:103 states that all states, except Alabama, Arkansas and Mississippi have state laws prohibiting discrimination on the basis of religion. Mississippi has a law prohibiting discrimination on the basis of religion for its public employees. (back to text.)
7 If the answer to that question for you is "Yes," you should proceed to the section entitled "The First Amendment, Federal Labor Laws And Compulsory Union Fees" later in this guide. (back to text.)
8 Smith v. Pyro Mining, 827 F.2d 1081, 1085 (6th Cir. 1987), cert. denied, 485 U.S. 989; Protos v. VW of America, 797 F.2d 129, 133 (3d Cir. 1986), cert. denied, 479 U.S. 972 (1986); Philbrook v. Ansonia Board of Education, 757 F.2d 476, 481 (2d Cir. 1985), aff'd in part, rev'd in part, 479 U.S. 60 (1986); Anderson v. General Dynamics, 589 F.2d 397, 401 (9th Cir. 1978), cert. denied, 442 U.S. 921 (1979); Brown v. General Motors, 601 F.2d 956, 959 (8th Cir. 1978); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978). (back to text.)