Union Politics Raise Religious Discrimination Concerns

Glen Greenwood worked as an enforcement official at the Ohio EPA for 19 years without major incident. But when his position became unionized in 1996, things started to go downhill.

Greenwood, a devout Presbyterian and a member of the church's board of elders, disagreed with some of the political standpoints the union took--chiefly support for homosexual marriage and abortion. Greenwood told his employer that he didn't want to pay fees to an organization to which he had a strong religious objection. He asked the agency to donate his fair-share fees to charity rather than give the money to the union.

Ohio's labor laws (as well as the National Labor Relations Act) provide that exact option to Mennonites and Seventh Day Adventists--whose churches have long opposed unionization of any kind. But the Ohio EPA didn't know whether Greenwood was entitled to a similar exemption, so the agency sent his claim to arbitration. A panel ruled in 2005 that Greenwood had to pay union dues.

At this point, the DOJ and EEOC stepped in and filed Title VII suits alleging religious discrimination against the state and several agencies, including the EPA and the Ohio Civil Service Employees Association (OCSEA). Greenwood joined as an intervenor in both suits.

The parties in the cases, U.S. v. Ohio and EEOC v. Ohio Civil Service Employees Association, settled in September, and the resulting consent decree--which requires employers to provide charitable-giving options for all employees who have sincere objections to union policies--is a wake-up call for all employers.

"I expect this case will encourage several thousand employees to come forward and say, 'I want the benefit of the consent decree too,'" says Jeffrey Pasek, chair of the labor and employment practice group at Cozen O'Connor in Philadelphia. "Ohio had enough good sense to settle this case, because the law is fairly clear as to what employee rights are in this area."

Testing Sincerity

According to the consent decree, any state employees who have "sincere" religious objections to the causes supported by their union can divert an "appropriate amount" of their union dues or fair-share fees to a mutually agreed upon charity. If the employee and union reach an impasse on either the amount or the charity, an arbitrator will decide.

In Greenwood's case, the union will divert 100 percent of his fair-share fees to a charity. But this issue is not the most controversial part of the consent decree.

"The most troubling thing is that it does not clearly set forth any bright-line test by which an employer can determine whether an employee has sincere religious objections to financially supporting a particular union," says Steven Gerber, partner-in-charge at Adorno & Yoss in New Jersey. "It's often difficult to assess whether the reported objections meet the standard of sincere religious beliefs."

Some worry that this will open the door for employees who simply don't like unions to voice disingenuous religious objections to avoid paying fair-share fees.

"The right-to-work movement is celebrating this decision because they realize it will be easy for someone to say that he or she has a personal belief and it would be difficult for the employer or union to prove otherwise," says Mark Filipini, partner at Preston Gates & Ellis.

However, the parties involved in the consent decree don't think that insincere employee objections will present a problem because state agencies already have policies for evaluating requests for religious accommodations.

"We have, historically, been willing to give wide latitude to religious exemption requests," says Peter Wray, communications director of the OCSEA, "as long as there is no significant personal economic windfall to a sudden claim of religious exemption and no manipulation to channel money into questionable charities."

If an employer doubts the sincerity of an employee's religious objection, Filipini suggests the employer ask itself: "Are we treating people who have different faiths or may not ascribe to a currently recognized faith equally? "

Revisiting Laws

Although the consent decree applies only to employees of the Ohio government, the case signals that federal agencies may soon force other states to change their labor policies to accommodate all employees' religious objections to union policies.

"The agreement signals that the federal government, through the Justice Department and the EEOC, is making this topic an enforcement priority," Filipini says.

Greenwood's attorney, Bruce Cameron, claims that many state laws are written in such a way that unions can rebuff religious objectors by telling them that they must be a member of a state-authorized church in order to be entitled to a religious accommodation.

"There are approximately 11 states that have statutes like Ohio's which discriminate on their face against members of certain churches," Cameron says.

Assistant U.S. Attorney General Bradley J. Schlozman agrees that state policies have to change.

"Such discrimination is forbidden by the civil rights laws and must end," he said in a statement.

Staff Writer

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