Jeffrey Reed v. International Union

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0166p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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JEFFREY J. REED,
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Plaintiff-Appellant,
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No. 07-2505
v.
,
>
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INTERNATIONAL UNION, UNITED
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AUTOMOBILE, AEROSPACE AND
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AGRICULTURAL IMPLEMENT WORKERS OF
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Defendant-Appellee. -
AMERICA,

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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-14233—Sean F. Cox, District Judge.
Argued: September 17, 2008
Decided and Filed: May 7, 2009
Before: GUY, BATCHELDER, and McKEAGUE, Circuit Judges.

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COUNSEL
ARGUED: Bruce N. Cameron, NATIONAL RIGHT TO WORK LEGAL DEFENSE
FOUNDATION, Springfield, Virginia, for Appellant. Barry Macey, MACEY, MACEY &
SWANSON, Indianapolis, Indiana, for Appellee. ON BRIEF: Bruce N. Cameron, Glenn
M. Taubman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION,
Springfield, Virginia, for Appellant. Barry Macey, MACEY, MACEY & SWANSON,
Indianapolis, Indiana, for Appellee.
BATCHELDER, J., delivered the opinion of the court. GUY, J. (pp. 10-11),
delivered a separate opinion concurring in the result. McKEAGUE, J. (pp. 12-20), delivered
a separate dissenting opinion.

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No. 07-2505 Reed v. Int’l Union Page 2

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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Jeffrey Reed appeals
the district court’s order granting summary judgment in favor of Defendant-Appellee
International Union, United Automobile, Aerospace and Agricultural Implement Workers
of America (“UAW”). Reed claims that UAW, in violation of Title VII of the Civil Rights
Act of 1964, failed to provide a reasonable accommodation for his religious objection to
financially supporting the union. Because Reed has failed to make out a prima facie case of
religious discrimination, we AFFIRM.

I. BACKGROUND

UAW represents the employees of automobile manufacturer AM General in
Mishawaka, Indiana. The collective bargaining agreement between UAW and AM General
includes a union security provision under which all AM General employees must either
become UAW members or pay the union an agency fee equal to the amount of membership
dues. The UAW Constitution grants both members and non-member agency fee payers “the
right to object to the expenditure of a portion of his/her dues money for activities or causes
primarily political in nature” and to receive a rebate for that portion. UAW and AM General
also are parties to a letter agreement that allows any employee with a bona fide religious
objection to joining or supporting a labor union to satisfy his union security obligation by
making a payment equal to full membership dues to one of three charities mutually
designated by UAW and AM General.

On May 20, 2002, AM General hired Reed to work at its Mishawaka facility, and
Reed immediately became a UAW member. After reading UAW publications, Reed
concluded that he could not financially support the union without violating his personal
religious convictions. Reed terminated his UAW membership on October 18, 2004. UAW
notified Reed that it would treat him as an objecting non-member and directed AM General
to deduct from Reed’s pay an agency fee consisting only of that portion of the union dues
not used for political expenditures.
No. 07-2505 Reed v. Int’l Union Page 3

On February 10, 2005, Reed informed UAW that he had religious objections to
supporting the union in any amount and asked to donate to Disabled American Veterans the
reduced agency fee he had been paying UAW as an objecting non-member. On November
10, 2005, after receiving confirmation from Reed’s pastor that Reed held bona fide, personal
convictions against supporting the union, UAW granted Reed’s request to be treated as a
religious objector. UAW instructed Reed to pay $439.44, the amount of full union dues that
1
had accrued since February 1, 2005, to one of the three charities selected by UAW and
AM General. UAW further explained that upon Reed’s delivering to UAW a receipt
showing full payment to an approved charity, the union would refund him $339.62, the
amount he had paid in agency fees from February 2005 through November 2005. Reed
paid $439.44 to Riley’s Children Foundation, one of the designated charities, and UAW
refunded him $339.62. This arrangement caused Reed to pay approximately $100 more
to charity as a religious objector than he had paid to UAW in agency fees as an objecting
non-member. Reed’s ongoing union security obligation requires him to make a monthly
charity payment approximately 22% greater than what he would pay UAW as an
objecting member or non-member.

Reed filed this action on September 26, 2006, alleging that UAW failed
reasonably to accommodate his religious objections to supporting the union. On October
19, 2007, the district court ruled on the parties’ cross-motions for summary judgment
and held that: (1) Reed had failed to establish his prima facie case because he had not
shown that he had been discharged or disciplined; and (2) even if Reed had established
a prima facie case, UAW’s accommodation of Reed’s religious objections was
reasonable. Reed timely appealed that decision to this court.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment, using the same
standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.
1999) (en banc). Summary judgment is proper “if the pleadings, the discovery and

1
Although Reed’s notice of his religious objection was dated February 10, 2005, UAW
announced that it would consider his religious-objector status as beginning on February 1, 2005.
No. 07-2505 Reed v. Int’l Union Page 4

disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). We must review all the evidence, facts, and inferences in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

In order to defeat a summary judgment motion, the nonmoving party “must show
sufficient evidence to create a genuine issue of material fact.” Prebilich-Holland v.
Gaylord Entm’t Co., 297 F.3d 438, 442 (6th Cir. 2002) (citing Klepper v. First Am.
Bank, 916 F.2d 337, 342 (6th Cir. 1990)). The nonmoving party must provide more than
a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). That
is, the nonmoving party must present evidence sufficient to permit a reasonable jury to
find in its favor. Id. Entry of summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
1996).

III. ANALYSIS

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for a labor organization . . . to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of his . . . religion . . . .” 42
U.S.C. § 2000e-2(c). There are two basic types of religious discrimination claims that
an individual may bring against a labor union under Title VII: disparate treatment
claims and religious accommodation claims. In raising a disparate treatment claim, a
plaintiff alleges that the union has treated him less favorably than similarly-situated
applicants or members because of his religion. Here, Reed has not brought a disparate
treatment claim. In fact, he has in his briefs before this court taken pains to emphasize
that he has taken only the “accommodation path,” a theory of recovery under which
Reed asserts that the union has failed reasonably to accommodate a conflict between an
employment requirement and his religious beliefs.
No. 07-2505 Reed v. Int’l Union Page 5

Title VII provides for religious accommodation claims in its definition of
religion, which includes “all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably accommodate
to an employee’s . . . religious observance or practice without undue hardship on the
conduct of the employer’s business.” 42 U.S.C. § 2000e(j). This definition imposes
upon employers a “statutory obligation to make reasonable accommodation for the
religious observances of its employees, short of incurring an undue hardship[.]” Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977). Although the definition
mentions only employers, “courts have held that the duty to accommodate an employee’s
religious beliefs extends to unions as well as employers.” Wilson v. NLRB, 920 F.2d
1282, 1286 (6th Cir. 1990); see also EEOC v. Union Independiente de la Autoridad de
Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 n.7 (1st Cir. 2002)
(“[C]ourts have uniformly imposed upon labor organizations the same duty to provide
reasonable accommodations.”).

In this circuit, it is settled that “[t]he analysis of any religious accommodation
case begins with the question of whether the employee has established a prima facie case
of religious discrimination.” Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007)
(quoting Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987)). “To establish
a prima facie case, [a plaintiff] must show that ‘(1) he holds a sincere religious belief that
conflicts with an employment requirement; (2) he has informed the employer about the
conflict; and (3) he was discharged or disciplined for failing to comply with the
conflicting employment requirement.’” Id. “Once an employee has established a prima
facie case, [the defendant] has the burden ‘to show that it could not reasonably
accommodate the employee without undue hardship.’” Id. (quoting Virts v. Consol.
Freightways Corp., 285 F.3d 508, 516 (6th Cir. 2002)).

Reed’s prima facie case failed, the district court held, because he had not
presented sufficient evidence from which a jury could find that he had been discharged
or disciplined. Reed contends that the district court was “confused about the elements
of proof.” The only disputed issue in the case, Reed argues, is whether he has been
No. 07-2505 Reed v. Int’l Union Page 6

reasonably accommodated — not whether he should have been accommodated. Reed
thus insists that he is not required to prove the elements of a prima facie religious
discrimination case.

We have declined to relieve a religious accommodation plaintiff of his burden
to establish a prima facie case, including the requirement that he demonstrate that he has
been discharged or disciplined. Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 637 (6th
Cir. 2003). Reed cannot avoid this requirement by insisting that the only controversy
here concerns the reasonableness — not the necessity — of his accommodation. Unless
a plaintiff has suffered some independent harm caused by a conflict between his
employment obligation and his religion, a defendant has no duty to make any kind of
accommodation. See id. Even Reed admits that “absent an accommodation requirement,
he could not claim that he had a right to pay his union fees to charity.” And although an
employer or union may not dole out accommodations in a discriminatory fashion, see
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986), Reed explicitly has
disavowed any disparate treatment claim.

Reed alternatively argues that he may satisfy the “discharge or discipline”
element of the prima facie case by showing any adverse employment action. Otherwise,
Reed contends, a religious accommodation plaintiff could never establish a prima facie
case against a labor union defendant, because a labor union cannot by itself discharge
or discipline an employee. Reed contends that the amount he must pay to charity in
excess of the amount other objectors pay to UAW “is effectively a reduction in his pay”
and constitutes an adverse action.

True, the prima facie elements of a religious accommodation case do not always
fit nicely into a case against a labor union. Just as a union cannot unilaterally discharge
or discipline an employee, it cannot by itself impose an employment obligation.2 We
need not attempt here to specify the precise contours of a prima facie case against a labor
union, however. Nor do we have to determine the broader question of whether

2
Reed’s lawsuit is against UAW only, although the charity payment requirement to which Reed
objects is imposed under the terms of a letter agreement signed by both UAW and AM General.
No. 07-2505 Reed v. Int’l Union Page 7

“discharge or discipline” should be understood to include any adverse employment
action. The dissent contends that “[t]his case is the first in our circuit to squarely present
the question of whether a plaintiff can satisfy the prima facie case for a religious
accommodation claim by showing an adverse employment action without showing
discharge or discipline.” Dissenting Op. at 15. But because we hold that the specific
accommodation Reed challenges here does not rise to the level of an adverse
employment action, we are not presented with the issue of whether a plaintiff can
proceed on a showing of an employment action that is “adverse” but is not a form of
“discharge or discipline.” Other than the accommodation itself, the reasonableness of
which he challenges, Reed cannot point to any action by UAW that has adversely
affected his employment. And whatever “discharge or discipline” or “adverse
employment action” may mean in other contexts, a plaintiff does not carry his burden
merely by showing that he has lost some amount of pay as a result of a proffered
accommodation. Tepper, 505 F.3d at 514. Even under the standard the dissent proposes,
the incremental adjustment to Reed’s pay as a result of his charity-substitution payment
is not actionable: It is not a materially adverse change in the terms or conditions of his
employment. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996).

In Tepper, we rejected a similar attempt to establish an identity between the
challenged accommodation and the alleged injury. There, the plaintiff was a Messianic
Jew who observed each Saturday as his Sabbath. Id. at 511. Although the post office
for which Tepper worked followed a rotating schedule that allowed employees to take
turns having Saturdays off, initially the staffing levels were sufficiently high for
management to accommodate Tepper by giving him every Saturday off. Id. at 511-12.
After staffing levels were reduced, this arrangement became difficult to sustain, and
Tepper’s supervisor informed him that his accommodation was being withdrawn. Id. at
512. The supervisor advised Tepper to reserve vacation time for Saturday absences, to
use annual leave and unpaid leave, and to exchange days off with other employees. Id.
at 512-13. Tepper argued that this alternative arrangement constituted a form of
discipline because it forced him to take unpaid leave, reducing his annual pay and his
No. 07-2505 Reed v. Int’l Union Page 8

pension. Id. at 513. We held, however, that “more than loss of pay is required to
demonstrate discipline or discharge.” Id. at 514.

Just as the plaintiff in Tepper could not point to any “discipline” other than the
accommodation he claimed was unreasonable, Reed has suffered no discipline or
adverse employment action other than the accommodation he claims is unreasonable —
his required charity-substitution payment. The dissent contends that our reliance on
Tepper is misplaced because in that case the employee was offered the option of taking
unpaid leave so he could observe his Sabbath. Tepper’s loss was different from Reed’s,
the dissent insists, because Tepper simply was not being paid for days he did not work.
Dissenting Op. at 17. Even so, Tepper’s accommodation required him to choose
between violating his Sabbath by working his scheduled Saturdays, and observing his
Sabbath but having limited opportunities to make up the lost hours and pay. Here,
Reed’s accommodation required him to choose between violating his religious beliefs
by paying the agency fee — albeit the reduced agency fee — to the union, and honoring
his religious beliefs by paying nothing to the union, but paying more out of pocket in
order to satisfy his union security obligation. So in both Tepper and this case, the
employee faced a choice of suffering either a monetary loss or a religious loss. Also of
note, each plaintiff received a corresponding benefit unavailable to other employees:
Tepper got every Saturday off, and Reed pays the union nothing while enjoying the
benefits negotiated through collective bargaining.

The dissent contends that unless we are willing to treat a challenged
accommodation as an adverse action, an employee can never prevail on a religious
accommodation claim unless he is first discharged or disciplined: “If the employee
accepts the accommodation, then, under the lead opinion’s view, the employee has
acquiesced in the discrimination and abandoned any hope of a remedy.” Dissenting Op.
at 18. But an employee who believes that he is being treated less favorably because of
his religion or some other protected ground has the right to bring a disparate treatment
claim — a claim that Reed explicitly has disavowed.
No. 07-2505 Reed v. Int’l Union Page 9

IV. CONCLUSION

Because Reed has not shown any material adverse employment action, much less
discharge or discipline, his religious accommodation claim fails. We therefore
AFFIRM the district court’s granting summary judgment in favor of UAW.
No. 07-2505 Reed v. Int’l Union Page 10

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CONCURRING IN THE RESULT
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RALPH B. GUY, JR., Circuit Judge, concurring. I concur in the result and write
separately to clarify my reasons for affirming the decision granting summary judgment
to the UAW with respect to Reed’s Title VII religious accommodation claim. Apart
from the questions raised concerning an appropriate prima facie test for such a claim by
the lead and dissenting opinions in this case, I agree with the district court that the
UAW’s accommodation requiring substitute payment of the full amount of dues to a
charity constituted a reasonable and nondiscriminatory accommodation of plaintiff’s
religious beliefs.

Title VII’s definition of “religion” makes it an unlawful employment practice
not to make reasonable accommodation for the religious practices of employees unless
it would cause undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977). An employee is entitled only to a reasonable accommodation, and, if reasonable,
the defendant need not show that the employee’s preferred accommodation would result
in undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67-68 (1986). The
duty to accommodate an employee’s religious beliefs extends to unions as well as
employers. Wilson v. NLRB, 920 F.2d 1282, 1286 (6th Cir. 1990). Although several
circuits have held that a union reasonably accommodates religious objectors by
permitting the substitution of charitable contributions for union dues, no circuit has
squarely addressed the reasonableness of requiring that the substituted charitable
contributions be equal to the full amount of the dues. See Wilson, 920 F.2d at 1286;
Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445, 451 (7th Cir. 1981);
Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1242 (9th Cir. 1981).

In addressing the question of reasonableness, the Court in Ansonia focused on
whether the accommodation eliminated the conflict between the employment
requirement and the employee’s religious beliefs. 479 U.S. at 70. There, the specific
accommodation—allowing the plaintiff to take unpaid leave to avoid working on
No. 07-2505 Reed v. Int’l Union Page 11

Saturdays—eliminated the conflict between the employment requirement and religious
practices and required him only to give up compensation for a day that he did not in fact
work. Id. at 70-71. In this case, Reed concedes that allowing him to make substituted
charitable contributions, even in the full amount of the dues, eliminated the conflict
between the union security clause and his religious beliefs. Reed actually argues that the
accommodation was not reasonable because it was discriminatory, relying on the caveat
in Ansonia that “unpaid leave is not a reasonable accommodation when paid leave is
provided for all purposes except religious ones.” Id. at 71.

Reed insists that the relevant comparison is not with nonobjectors who pay the
full amount of the dues, but with nonmember objectors (Beck objectors) who pay only
that portion of dues expended on “core” representational activities (i.e., 78.29% of the
full dues). See Communications Workers v. Beck, 487 U.S. 735 (1988). In arguing that
the difference is religious discrimination, Reed characterizes the comparison as being
between “secular” and “religious” objectors. This is both misleading and inaccurate—as
plaintiff’s own situation demonstrates—since an employee may elect nonmember Beck
status because the union’s political activities conflict with his religious beliefs. The
difference is based not on the employee’s reasons for objecting, but rather on the nature
of the respective objection, and different objections call for different accommodations.
See, e.g., EEOC v. Univ. of Detroit, 904 F.2d 331, 335 (6th Cir. 1990). Nor is Reed
persuasive in arguing that only religious objectors are compelled to pay an amount equal
to the full dues because any nonobjecting member can choose to leave the union and
assert Beck objector status. That is to say nothing more than that an employee cannot
be compelled if he is a Beck objector. Since the accommodation provided plaintiff in
this case was reasonable, the district court did not err in granting summary judgment to
the UAW with respect to Reed’s religious accommodation claim.
No. 07-2505 Reed v. Int’l Union Page 12

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DISSENT
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McKEAGUE, Circuit Judge, dissenting. The lead opinion affirms based on
Reed’s failure to demonstrate either discharge or discipline as part of his prima facie
case against his union–a union, it is worth noting, that does not have the power to
discharge or to discipline. I do not think either Title VII or our past holdings requires
such a showing. An adverse employment action should be all that is required to
establish a prima facie case for a religious accommodation claim, and certainly no more
than that should be required in a claim against a union. The UAW required Reed to pay
more dues because of the religious nature of his objection to the union, and this
increased payment was an adverse employment action. I would therefore hold that the
increased payment was sufficient to establish the final element of Reed’s prima facie
case.

I also disagree with the concurring opinion’s analysis of the reasonableness of
the accommodation. Because I do not agree with either ground offered for affirming the
district court’s judgment, I respectfully dissent.

I.

Religious accommodation claims against employers arise under the same
statutory provisions as other Title VII religions discrimination claims. Title VII makes
it an unlawful employment practice to “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). Religion “includes all aspects of
religious observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee’s or prospective
employee’s religious observance or practice without undue hardship on the conduct of
the employer’s business.” 42 U.S.C. § 2000e(j). “The intent and effect of this definition
was to make it an unlawful employment practice under § 703(a)(1) [42 U.S.C. § 2000e-
No. 07-2505 Reed v. Int’l Union Page 13

2(a)(1)] for an employer not to make reasonable accommodations, short of undue
hardship, for the religious practices of his employees and prospective employees.” TWA
v. Hardison, 432 U.S. 63, 74 (1977). Section 2000e-2(a)(1) also provides the basis for
religious disparate treatment claims. See Tepper v. Potter, 505 F.3d 508, 515 (6th Cir.
2007).

Despite the single statutory source for Title VII religious discrimination claims,
our past decisions have incorrectly suggested a different level of harm is required to
establish a prima facie disparate treatment claim based on religion than is required to
establish a prima facie religious accommodation claim. A disparate treatment claim
requires the employee show, among other things, “that he experienced an adverse
employment action.” Tepper, 505 F.3d at 515. An adverse employment action is “a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).
A religious accommodation claim, meanwhile, appears to require a plaintiff to make a
higher showing that “he was discharged or disciplined for failing to comply with the
conflicting employment requirement.” Smith v. Pyro Mining Co., 827 F.2d 1081, 1085
(6th Cir. 1987).

This distinction between the amount of harm required under a disparate treatment
theory and under a religious accommodation theory is not required by the statute. See
42 U.S.C. § 2000e-2(a)(1). It is also not required by our past holdings, though it is true
that our religious accommodation precedents do use the “discharge or discipline”
language. That is not surprising, because those decisions invoking the third element of
the religious accommodation prima facie case almost invariably involve discharged
employees. See Virts v. Consol. Freightways Corp. of Delaware, 285 F.3d 508, 515 (6th
Cir. 2002) (discharged employee); Hall v. Baptist Mem’l Health Care Corp., 215 F.3d
618, 623 (6th Cir. 2000) (discharged employee); Cooper v. Oak Rubber Co., 15 F.3d
1375, 1378 (6th Cir. 1994) (discharged employee); McGuire v. Gen. Motors Corp., 956
F.2d 607, 609 (6th Cir. 1992); Smith, 827 F.2d at 1084 (discharged employee). These
No. 07-2505 Reed v. Int’l Union Page 14

cases therefore did not need to address whether a claim could survive without showing
that the plaintiff had been discharged.

Our two most recent religious accommodation cases illustrate only that the prima
facie case cannot be satisfied without showing some adverse employment action. In
Tepper, we found that the plaintiff had failed to establish the prima facie case because
the only action taken against him was that his employer required Tepper to use unpaid
leave for his observance of the Sabbath. 505 F.3d at 514. We noted that this not only
failed to establish the prima facie case for religious accommodation, it failed to establish
any adverse action at all. See id. at 516. Similarly, in Goldmeier v. Allstate Ins. Co., the
plaintiffs quit their jobs before experiencing any adverse effect from their employer’s
failure to accommodate their religious beliefs. 337 F.3d 629, 633 (6th Cir. 2003).
Tepper and Goldmeier therefore both involve plaintiffs that have not shown any adverse
action, much less either discharge or discipline. They do not address whether a claim
could succeed upon a showing of an adverse employment action other than discharge or
discipline.

Other circuits have stated that an adverse employment action short of discharge
or discipline is sufficient to establish the prima facie case for religious accommodation.
See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004); EEOC v. Union
Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d
49, 55 (1st Cir. 2002); EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir. 1996);
see also Bowles v. New York City Transit Auth., 285 F. App’x 812, 813 (2d Cir. 2008);
Ali v. Alamo Rent-A-Car, Inc., 8 F. App’x 156, 158-59 (4th Cir. 2001). Indeed, I can
find no decision in any circuit in which an appellate court found a plaintiff failed to
establish a prima facie case where the plaintiff had demonstrated a materially adverse
employment action.

Moreover, our precedents allude to the sufficiency of an adverse employment
action in religious accommodation claims. In Goldmeier, we rejected the appellants’
argument that they need not show any harm in order to satisfy the prima facie case:
“neither this court, nor any of its sister circuits with substantively parallel religious
No. 07-2505 Reed v. Int’l Union Page 15

discrimination jurisprudence, has ever endorsed the Goldmeiers’ conclusion that no
adverse employment action need be shown to sustain a prima facie case.” 337 F.3d at
637. In Tepper, this court equated the “discharge or discipline” element of the religious
accommodation prima facie case with the “materially adverse employment action”
requirement of a disparate treatment claim. 505 F.3d at 516.

This case is the first in our circuit to squarely present the question of whether a
plaintiff can satisfy the prima facie case for a religious accommodation claim by
showing an adverse employment action without showing discharge or discipline. I
would hold that a plaintiff should be able to succeed on such a showing. While
discharge or discipline (assuming it is sufficiently severe) will always constitute a
materially adverse employment action, there is no legal or logical reason why a plaintiff
who suffers a materially adverse employment action must also show discharge or
discipline.

II.

Further, even assuming that our precedents compel this court to require a
showing of discharge or discipline in a religious accommodation suit against an
employer, there is no reason to extend that requirement to claims brought against unions.
As the lead opinion acknowledges, “the prima facie elements of a religious
accommodation case do not always fit nicely into a case against a labor union.” There
is a reason they do not fit nicely: the artificially high standard that we have previously
suggested for a prima facie case against an employer simply can never be met in a claim
against a union. As a union can neither discharge nor discipline an employee, applying
the “discharge or discipline” element in claims against unions would foreclose all such
claims. The lead opinion attempts to avoid this result by simply noting that there is no
adverse employment action in this case. As I discuss below, I think it is clear that Reed
did suffer an adverse employment action. Even putting that to the side, however, I
cannot see how we can avoid entirely the question of what level of harm a plaintiff must
show in a claim against a union. We cannot hold that Reed failed to meet the prima facie
case without any indication of what that prima facie case is.
No. 07-2505 Reed v. Int’l Union Page 16

Indeed, Title VII itself suggests there may be a difference between claims against
employers and claims against unions. A religious accommodation claim against
employers is rooted in 42 U.S.C. § 2000e-2(a)(1). See Hardison, 432 U.S. at 73. The
Supreme Court has held that the language of that section–“‘hire,’ ‘discharge,’
‘compensation, terms, conditions, or privileges of employment,’ ‘employment
opportunities,’ and ‘status as an employee’–explicitly limit the scope of that provision
to actions that affect employment or alter the conditions of the workplace.” Burlington
N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). The same language does not
exist in Title VII’s union provision. Instead, it is an unlawful practice for a union to
“exclude or . . . expel from its membership, or otherwise to discriminate against, any
individual because of his . . . religion,” id. § 2000e-2(c)(1), or to “cause or attempt to
cause an employer to discriminate against an individual in violation of this section.” Id.
§ 2000e-2(c)(3). Notably, the phrase “otherwise discriminate against” is similar to that
in Title VII’s retaliation provision, which the Supreme Court has held is more expansive
than the language in the provision giving rise to disparate treatment claims. See
Burlington, 548 U.S. at 63-64.

Thus, even if this case does not provide an opportunity to clarify exactly what
standard should apply in religious accommodation claims against unions (which I submit
it does), the difference in statutory language should at least give us pause before we
extend the “discharge or discipline” requirement to claims against unions. Add this
difference in statutory language to the practical reality that a “discharge or discipline”
requirement would essentially bar religious accommodation claims against unions, and
it is clear that we should not impose the “discharge or discipline” requirement in this
context.

III.

As discussed above, I believe that a materially adverse employment action is the
appropriate standard for all religious accommodation claims. Reed satisfied that
standard. The UAW required Reed to make larger payments than secular objectors.
This disparity constitutes an adverse employment action. Under Title VII, an
No. 07-2505 Reed v. Int’l Union Page 17

employment action must amount to “a materially adverse change” in the terms or
conditions of employment to be actionable. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d
876, 885 (6th Cir. 1996); see also Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th
Cir. 2004). Notably, the Supreme Court stated that such an action will “in most cases
inflict[] direct economic harm.” Ellerth, 524 U.S. at 762. The economic effect does not
have to be large in order to be an adverse employment action. See White v. Burlington
Northern & Santa Fe R. Co., 364 F.3d 789, 794, 802 (6th Cir. 2004) (en banc). A
differential in pay establishes an adverse employment action. Fuhr v. School Dist. of
City of Hazel Park, 364 F.3d 753, 758 (6th Cir. 2004).

The UAW required that Reed donate the full amount of union dues to charity
rather than the lower amount political objectors must pay the union. If Reed had a
secular objection to the union, the amount Reed would have to pay would decrease. This
is a direct economic effect that resulted in Reed receiving less net income. As such, the
ongoing higher payment the union requires of religious objectors constitutes an adverse
employment action.

IV.

The lead opinion seeks to minimize the significance of this economic burden by
relying on Tepper. Yet Tepper presented a significantly different set of facts. In Tepper,
the plaintiff sought days off to observe religious holidays. 505 F.3d at 512. His
employer originally accommodated him, but later rescinded the accommodation. Id. His
employer continued to permit the plaintiff to use unpaid leave for all of his holidays. Id.
The plaintiff alleged that using unpaid leave decreased his pay. Id. We dismissed this
argument, noting that “[t]he Supreme Court has stated that ‘the direct effect of unpaid
leave is merely a loss of income for the period the employee is not at work; such an
exclusion has no direct effect upon either employment opportunities or job status.’” Id.
at 514. We then concluded that “Tepper is simply not being paid for the time he does
not work.” Id. The same cannot be said for Reed.

Nor am I persuaded that the fact the adverse employment action in this case
occurs as part of an accommodation should alter the analysis of the prima facie case.
No. 07-2505 Reed v. Int’l Union Page 18

There is no indication in our case law that the prima facie case is limited in this way. In
Tepper, for example, we found that the prima facie case was not satisfied because the
accommodation did not harm the plaintiff–not because the harm to the plaintiff was part
of an accommodation. See 505 F.3d at 514.

Moreover, the lead opinion’s arbitrary distinction between employer/union
practices that “count” for the prima facie religious accommodation case and those that
do not places religious employees in an unavoidable bind. If an employer or union
offers the employee an accommodation that adversely affects the terms and conditions
of his or her employment, the employee can do nothing but lose. If the employee accepts
the accommodation, then, under the lead opinion’s view, the employee has acquiesced
in the discrimination and abandoned any hope of a remedy. Meanwhile, if an employee
rejects the accommodation, the employee not only puts his or her employment in
jeopardy, the employee also runs afoul of the Supreme Court’s instruction that the
employer, not the employee, chooses the accommodation. See Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 67-69 (1986). The lead opinion does not–and I think
cannot–explain what an employee placed in this position should do in order to
appropriately assert his or her rights under Title VII.

V.

I also find the concurring opinion unpersuasive in its analysis of the
reasonableness of the accommodation at issue here. Unlike the concurring opinion, I do
not think it is enough to say that Reed’s objection is different from other accommodated
objectors. Though this is undoubtedly true, it does not explain why the accommodation
is reasonable.

While the union does not have to use the accommodation proffered by the
employee, the union must offer a reasonable accommodation. See E.E.O.C. v. Univ. of
Detroit, 904 F.2d 331, 334 (6th Cir. 1990). I would find the accommodation here
unreasonable for two reasons: the union cannot require a payment of this size from a
nonmember, and the accommodation is discriminatory.
No. 07-2505 Reed v. Int’l Union Page 19

The Supreme Court has held that unions may exact from objecting nonmembers
“only those fees and dues necessary to performing the duties of an exclusive
representative of the employees in dealing with the employer on labor-management
issues.” Commc’n Workers of Am. v. Beck, 487 U.S. 735, 762-63 (1988) (internal
quotation marks and citation omitted). Based on this, the Sixth Circuit has observed that
Beck “limit[ed] the amount of dues a union can charge a non-union member.” United
Food and Commercial Workers Local 951 v. Mulder, 31 F.3d 365, 367 (6th Cir. 1994).
If a union cannot charge an objecting nonmember more than the Beck amount, it seems
to me that there is no basis for offering an accommodation in excess of that amount. As
Reed is an objecting nonmember, it seems to me that a reasonable accommodation
should be based on the amount that the union can require from objecting nonmembers
under Beck.1

In this regard, I find persuasive the district court opinion in O’Brien v. City of
Springfield. Relying on a state statute and a state regulation that provided a rule similar
to the rule established in Beck,2 a Massachusetts district court held that requiring a
donation equal to full union dues was “a per se unreasonable accommodation.” 319 F.
Supp. 2d 90, 107 (D. Mass. 2003). It further explained that a union “is not entitled to
charge whatever amount it wishes to someone making a charitable substitution.” Id. at
106. The same reasoning should apply under Beck. The union should not be able to
require objecting nonmembers to pay any more than Beck permits.3 As Reed is an

1
Although Reed did not articulate the argument in quite this fashion, he did raise a functionally
identical argument in his briefs. Rather than phrasing the argument in terms of the amount the union can
require him to pay, he argued that Beck gave objectors the right to choose not to pay the portion of union
dues used for political purposes.
2
The union notes that, unlike under Beck, the Massachusetts law does not permit unions to charge
any nonmembers more than the agency service fee. See Mass. Gen. Laws ch. 150E, § 12; Mass. Regs.
Code tit. 456, § 17.04. For the reasons given below in footnote 3, I do not think this distinction alters the
analysis of the reasonableness of the accommodation in this case.
3
The union argues that, because nonmembers who do not object can be required to pay the full
amount, the relevant benchmark should be the full dues amount. However, there is absolutely no dispute
here that Reed has made his objections known to the union. Therefore, the relevant amount should be the
Beck amount, not the full dues amount. So long as an objector makes his or her objection known, the
union cannot charge the full dues amount under Beck. See Beck, 487 U.S. at 762-63; Int’l Assoc. of
Machinists v. Street, 367 U.S. 740, 774 (1961). What the union can charge other employees should
therefore be irrelevant in determining the accommodation for Reed. Rather, the relevant standard should
be based on the status of the employee in question. It would likewise be fruitless for an employer to argue
No. 07-2505 Reed v. Int’l Union Page 20

objecting nonmember, I would find that the union’s attempt to force Reed to donate the
full union dues amount rather than the amount paid by Beck objectors is unreasonable.

Further, the accommodation is discriminatory. The union admits that it prefers
the elevated amount because “this arrangement does not create any financial incentive
for employees to claim religious objection in order to reduce their financial obligations.”
Response Br. at 32. The value of the higher amount is precisely its deterrence of other
members and nonmembers from asserting their religious objections. The union offers
no other reason for requiring the elevated payments, and I cannot think of a non-
discriminatory reason for requiring religious objectors such as Reed to pay more in order
to accommodate their objections. I would therefore find the amount the union requires
Reed to pay is discriminatory. As such, the accommodation should also be deemed
unreasonable under Ansonia Board of Education v. Philbrook. See 479 U.S. 60, 71
(1986) (“Such an arrangement would display a discrimination against religious practices
that is the antithesis of reasonableness.”).

VI.

There is no question that the only way Reed could avoid the conflict between his
religious beliefs and the UAW’s requirements was through a payment greater than that
required of other objectors. I would find this sufficient to establish the third prong of the
prima facie case for religious accommodation. I also would find the accommodation
offered by the union unreasonable because the union lacks the authority to require such
a large payment and the accommodation discriminates against religious objectors.
Accordingly, I respectfully dissent.

that, when reviewing the termination of a for-cause employee, the court should consider that an employer
can fire an at-will employee for any reason. Instead, what matters is the for-cause status of the employee
in question. Similarly, the union should not point to the dues it can require other employees to pay; what
matters is the amount it could otherwise require Reed to pay.