Janus’s Solution for Title VII Religious Objectors

Abstract

Many collective-bargaining agreements require employees to fund a union to keep their job. The problem for a small minority is that they cannot do so without compromising their religious beliefs. The common solution under Title VII is that these employees must pay union fees to charity. But this is not a reasonable accommodation. This requirement punishes individuals for following their faith, contrary to Title VII. And there is no reason for it after Janus v. AFSCME, Council 31.

In Janus, the Supreme Court repudiated the free-rider and labor-peace rationales that support forced payment to charity. The Court showed that nonmembers need not pay fees to compensate the union or to prevent labor unrest. These rationales fail even more so under Title VII. Unlike fees paid to a union, charitable donations do not compensate the union, nor do they eliminate the claimed discord between employees who fund the union and those who do not. And so neither rationale supports forced payment to charity. Simply put, payment to charity punishes religious objectors.

Thus, forced payment to charity violates Title VII. Unions and employers under Title VII must accommodate and avoid adverse treatment based on religion. Forced payment to charity fails both rules. Accommodation merely requires unions and employers to exempt individuals from funding a union contrary to their religious beliefs. In contrast, payment to charity is a penalty added solely to harm religious objectors. A penalty is not a reasonable accommodation. What’s more, it discriminates against religion because the penalty applies based on employees’ religious beliefs. Janus shows the proper solution: religious objectors need not pay any forced union fees.

Keywords: Title VII, Janus, Religion, Union, Union Fees, Union Dues, Charity, First Amendment, Free Exercise