WHO TITLE VII COVERS--
Title VII provides protection for nearly all employees. Private employers and state and municipal employers with 15 or more employees are covered. All labor unions with 15 or more members are covered. All federal employees are covered. Click here to read about the exceptions. 2
A favorite tactic of labor unions is to tell employees who ask about protection for religious faith that their faith is not protected unless they are a member of a specific church. The union official will suggest that your church must have an official doctrine prohibiting members from supporting a labor union. That is not true. Title VII protects all sincere religious objectors regardless of church membership. If a union representative shows you a law that contradicts this statement, then you are not being shown Title VII. Most likely, the union representative is showing you an unconstitutional state law. If your employer or union are covered by Title VII, then you also are covered no matter the nature of your religious faith.
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 which it imposes. The only way that an employee can claim his or her rights under Title VII is to first file a charge with the Equal Employment Opportunity Commission (“EEOC”).3 An employee can be sure that he has filed a timely charge if he files it within 180 days of the date of discrimination.4 In most situations (which turn on state law), this time period is stretched to 300 days.5 Unless the act of religious discrimination is continuing in nature, if it occurred more than 300 days before the employee files his charge, the charge is untimely and the EEOC will not favorably consider it.6 Without going into the complex legal issues, if the act of discrimination occurred between the 180 and 300 day periods, a charge should be filed because it is very common that the 300 day period is applicable.
If you are an employee of the federal government, you have only 45 days from the date of discrimination to contact an EEO Counselor to protect your rights.
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 that you consider your religious beliefs carefully.
Title VII protects religious beliefs. Title VII protects religious beliefs and practices. It does not protect political or philosophical beliefs and practices. Although there is much 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 certain the lawyers for the union or the employer will closely look 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 attorney, where every word you say is being recorded.
To determine whether your beliefs are religious instead of political or philosophical, ask yourself whether they are based upon your obligations to God? Or, do you simply dislike unions or hate this particular union's politics? If your desire to stand apart from the union arises from your relationship with God and your desire to obey God, your beliefs are religious.
Understand that an employee of faith can also have political and philosophical objections to the union. Often employees of faith have their entire world-view shaped by their religious beliefs. The fact that an employee of faith reaches a view about unions based on religious and other grounds does not discount the importance of the religious grounds. I once represented a famous economist who had religious objections to supporting the union. The union defended on the basis that this economist had authored many professional publications that argued unions were bad for the economy. My response was that it would be quite odd for an economist to believe that it was immoral to support a labor union, and at the same time believe that unions are a wonderful economic benefit to employees and the country.
An important part of examining 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 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, with the majority of the fee flowing 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.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 affiliated unions that 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?
Most unions do not allow employees to pick and choose which levels (or affiliates) of a union they will join. Joining any level of the union means that you must join all levels of the union. Many religious objectors look at this “unified dues” requirement and conclude that if the union considers all the levels of the union “unified,” it is more accurate to view the union as one unified organization. As a result, if one or more levels of the union are promoting immoral activities, the objector cannot support the union at any level. In those cases, the conflict with Joe Believer’s conscience would only be eliminated if Joe's entire union fee was 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.
This is the point where Title VII law changed in 2015 with the Abercrombie decision. No longer are you required to write a detailed letter to put the employer and union on notice of your need for a religious accommodation. Employers and unions have an obligation to willingly attempt to accommodate you even if they merely suspect you have a religious objection. However, the best practice is to make your objection specific and clear by putting it in writing and sending it to your employer and union. You don’t want to argue about what your employer or union might have suspected about your religious beliefs.
With the change in the law, you have some options that you should carefully consider. A very simple notice is now sufficient. For example, I believe it is now legally sufficient to provide a written notice saying, “I have sincere religious objections to joining or financially supporting the union. I request a religious accommodation that will allow me to redirect my union fees to a charity.”
In some public schools there is quite a bit of pressure to support the homosexual movement. If your religious objection to supporting the union is based on its promotion of homosexuality, you may decide it is more prudent to keep your views on homosexuality out of your letter, and thus keep it simple. The simple letter may be best for certain employees.
A detailed letter may be best for other employees. For example, many evangelical Christians believe this situation is a good opportunity to share their religious beliefs. If you decide to write a more detailed letter, a good format is this:
A. describe the work requirement that conflicts with your conscience;
B. explain how this requirement is in conflict with your sincere religious beliefs; and,
C. suggest how your religious beliefs can be accommodated.
Let’s review these three points in more detail.
The work requirement that conflicts with your conscience is that someone has told you that you must join or financially support the union.
In explaining how paying union fees conflicts with your religious beliefs, you must be careful to state your beliefs accurately. If you appear to change them later, you will look dishonest. If your religious beliefs are based on the Bible, you can 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, recite that authority.
If your religious beliefs have made a practical difference in your life, try 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 shows 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 pro-life 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.
When you get to the last point, that part of your letter requesting a religious accommodation, suggest an accommodation. If you are willing to pay the entire fee to the local (but not the state and national affiliates) as an accommodation, suggest that. If you are willing to pay the fee to a charity, suggest a few charities to which you would be willing to contribute. As a general rule, religious or labor charities are not acceptable. You probably have a conflict with supporting a labor charity, and the union will likely object to a religious charity.
You should also check the collective bargaining agreement between your employer and union to see if it lists acceptable charities. Many labor laws, including the National Labor Relations Act,8 require that at least three charities be named in the collective bargaining agreement for religious objectors.
Your suggested charities may play a critical part in persuading the union to accommodate your beliefs. Does the union president have a close relative who died or suffers from illness? If so, consider naming a charity that does research on that illness. If your union represents a certain profession, consider suggesting 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 a crisis pregnancy center as the charity. While this guide was made possible by the National Right to Work Legal Defense and Education 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 completely protect your conscience, the union or employer has the right to choose among those solutions.9
Writing a more detailed letter has one other potential advantage: if your dispute ultimately gets into court, your letter will be a critical piece of evidence from which the judge may get a first (and lasting) impression of you. Of course, the tone of a detailed letter must be to persuade the union and employer to honor your religious beliefs. The letters must not condemn, confront or condescend. You may think a well-trained chimp could do a better job of bargaining than your union team. You may think your union leadership is dishonest. Keep those views out of your letter. If you are able to persuade your employer and union to work out a solution now, it will spare you grief later.
As you now know, you have two options for giving the employer and union notice about your religious beliefs. You can send a simple notice (in fact, you can copy the simple notice I have suggested), or you can write a more detailed letter. Never copy a detailed letter from some other source. It is important that any detailed letter be your own work, stating your own beliefs.
If you decide to write a detailed letter, the best way to ensure your letter reflects your own religious beliefs, yet contains nothing that might undermine your request for a religious accommodation, is to run the letter by one of the Foundation’s attorneys before you finalize and send it. The easiest way to do this is to send a copy by e-mail to firstname.lastname@example.org. Writing the letter in Word and attaching it to an e-mail works just fine for the Foundation’s attorneys.
During those decades where writing a detailed religious accommodation letter was the best practice, I noticed an unexpected benefit in reviewing those drafts. Most religious objectors know very little about this area of law, and the entire process of requesting a religious accommodation is something new. By reading the draft letter, I was able to spot questions and issues the religious objector had not carefully considered. For that reason, even if you decide to send only a simple notice to your employer and union, it would be wise to draft a more detailed letter and send it to the Foundation’s lawyers so that you can be sure you have carefully considered all of the important aspects of your religious accommodation request.
After a lawyer has reviewed your detailed letter notice, or you have decided to send the simple letter notice, send the notice to someone at the union or your employer who has the authority to accommodate your religious beliefs. Certainly, the president of the local union or the company president should have authority to accommodate you. When dealing with affiliates of the National Education Association, sending your letter notice to the general counsel of the state affiliate is best. To be safe, send your notice in a way that you have proof it was received.
Step 3: Cooperate in working out a solution.
After an employee writes to 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 requires that you to do everything in your power to cooperate with them to find a solution that will not compromise your conscience.
If you send the union and employer a simple letter notice, the union may want more information about your religious beliefs. Because the Abercrombie decision is new (2015), the courts have yet to resolve whether “cooperation” means that you have to give more information about your religious beliefs than is necessary to make a reasonable accommodation. Many years ago, the United States Supreme Court mentioned an employee’s constitutional right of privacy when it comes to his or her beliefs regarding compulsory union fees. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 241 (1977). Clarifying this area of law may require further litigation.
Among the legal defenses available to the union and employer is one called "undue hardship." 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 union. The good news is that in 40 years of litigating these cases, I have never lost a union fee case based on the undue hardship defense, and I know of no decision rejecting the charity substitution payment based on a union’s claim of undue hardship.
2. There are some limited exceptions to the list of covered employers. Those exceptions include Indian tribes, certain employees of the District of Columbia and tax-exempt private clubs. An employer with less than 15 employees may be covered by a state anti-discrimination law. Federal employees have additional procedures not outlined here.
3. Love v. Pullman Co., 404 U.S. 522 (1972).
4 42 U.S.C. § 2000e-5(e)(1).
5 Id. 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, most states now have laws prohibiting discrimination on the basis of religion. Only Alabama and Mississippi are clear exceptions.
6 EEOC Compliance Manual § 2-IV.
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" on page 15 in this guide.
8 29 U.S.C. § 169.
9 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).
10 TWA v. Hardison, 432 U.S. 63 (1977).