Employee Objects to Using Transgender Co-Workers' Personal Pronouns, Now What?
Posted: July 14, 2021
Most employees are at-will; they can be fired for any reason or no reason at all. Intentionally misgendering a co-worker would be enough. What if the employee objects on religious grounds?
The answer may come from a July 12, 2021 ruling from an Indiana district court. The judge started by citing Shakespeare:
What's in a name? William Shakespeare suggested maybe not much, for "that which we call a rose, by any other name would smell as sweet." But a transgender individual may answer that question very differently, as being referred to by a name matching one's identity can provide a great deal of support and affirmation. This case involves the legal ramifications of [an employer's] practical response to that philosophical question.
This case (Kluge v. Brownsburg Community School Corporation) involves a music teacher, John Kluge, who refused to refer to transgender students by the names his students (and their parents and healthcare providers) had selected due to Kulge's religious objections to being transgender. After Kluge lost his job, he sued the school for failing to accommodate his religious beliefs under Title VII of the Civil Rights Act of 1964 (Title VII).
Title VII, which prohibits employment discrimination based on religion, makes it unlawful to refuse to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship (more than a minimal burden on the operation of the business).
From the Court's opinion, the Court assumed that the plaintiff sincerely held religious beliefs against referring to transgender students by their preferred names and pronouns.
Therefore, the burden shifts to the defendant to show that it cannot accommodate the plaintiff's refusal to address transgender students by their preferred names and pronouns without creating an undue hardship. To meet its burden, the school introduced evidence that the plaintiff's failure to address transgender students by the names and pronouns unduly interfered with its mission to educate students. Specifically, the plaintiff's religious opposition to being transgender was at odds with the defendant's policy of respect for transgender students, which is grounded in supporting and affirming those students.
Well, actually, at one point, the two sides appeared to have a compromise. They agreed that the plaintiff would refer to all students by their last names only. However, after several students complained, the school later rescinded the policy. Additionally, the plaintiff did not dispute that refusing to affirm transgender students in their identity can cause emotional harm, which will likely repeat each time a new transgender student joins his class (or, as the case may be, chooses not to enroll in music or orchestra classes solely because of his behavior). Allowing this to go unchecked could have resulted in a student asserting a Title IX claim against the school. Would the student have prevailed? Unclear. But the court noted that the mere risk and expense associated with the lawsuit established undue hardship.
Thus, there was no duty to accommodate. Defendant wins.
Unless you operate a school, there are different facts and circumstances attendant to an employee's refusal to address a co-worker by the co-worker's preferred pronouns. However, there may be some parallels:
- Your business promotes dignity, respect, and inclusion. Intentionally misgendering does not comport.
- An intentionally misgendered employee may suffer emotional harm.
- An intentionally misgendered employee may complain and eventually assert a Title VII claim for sex discrimination.
The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document, setting forth what it says are the agency's "established legal positions" relating to discrimination based on sexual orientation or gender identity. The document specifically weighs in on pronouns and other related topics.
Posted In: Equal Employment Opportunity Commission (EEOC); Sexual Harassment; Title VII of the Civil Rights Act of 1964 (Title VII)
Want to know more? Read the full article by Eric B. Meyer at The Employer Handbook