One of your employees objects to using transgender co-workers’ personal pronouns. Now what?

Non-binary pronouns

Amousey, CC0, via Wikimedia Commons

Most employees are at-will; they can be fired for any reason or no reason at all. And intentionally misgendering a co-worker would be enough.

But, what if the employee objects on religious grounds? 🤔

I may have an answer for you. It comes from this federal court opinion issued yesterday. 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 involves a music teacher who refused to refer to transgender students by the names his students (and their parents and healthcare providers) had selected due to his religious objections to being transgender. After he 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, 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).

I read the court’s opinion — all 52 pages — and 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 loggerheads 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.

Employer takeaways.

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, I do see 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.

I’m struggling to see how an employer can reasonably accommodate an employee who refuses to address transgender co-workers by their names/pronouns due to his religious objections to being transgender.

If you’ve encountered this issue and worked through it successfully, please email me and let me know.

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