KHVPF Insight

Preferred Pronouns and Religious Accommodations

Less than four years ago, the Supreme Court held in Bostock v. Clayton County that Title VII prohibits discrimination against transgender people. Consistent with this decision, employers have increasingly adopted policies requiring employees to use their transgender co-workers’ preferred pronouns and call them by their preferred name. But as with many topics that have become flash points in the culture wars, many employees have resisted such policies, with some claiming that their religious beliefs preclude them from—for instance—referring to a transgender woman as “she” or a transgender man as “he.” Some employees have thus sought religious exemptions from their employers’ policies that would require use of an employee’s preferred pronoun. This puts employers in a quandary: deny the accommodation and risk a claim by the objecting employee based on religious discrimination, or allow the accommodation and risk a hostile work environment claim from a transgender employee?

The law in this area is somewhat unsettled. For the past decade, the EEOC has held that “[p]ersistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment when judged from the perspective of a reasonable person in the employee’s position.” It has since reiterated that position after Bostock. That said, the EEOC’s policy is not generally subject to judicial deference, so courts will apply their own analysis.

The clearest ruling on the issue thus far has come from the Seventh Circuit. The case of Kluge v. Brownsburg Community School Corporation involved a school district policy that allowed students to identify their preferred name and personal pronouns in a school database (with the permission of a parent and a letter from a healthcare professional regarding the need for the changes). The policy further required all staff to address students by their registered names. Plaintiff, citing religious beliefs, sought an accommodation from the policy that would allow him to refer to students only by their last name, and without honorifics (“Mr.” or “Ms.”). The school granted the accommodation. Later, several students—both transgender and non-transgender— complained that the teacher’s use of only last names made them feel isolated and targeted, as it was obvious to why he was using only their last names. He was also alleged to have occasionally “slipped up,” using first names or honorifics when referring to non-transgender students. Given these complaints, the school then revoked the accommodation, claiming it caused undue burden. The school told the teacher he needed to comply with the policy, resign, or be terminated. He resigned.

The Seventh Circuit sided with the school, holding that the “last name” accommodation was an undue burden on the school’s mission to educate all of its students, and its desire to treat all students with respect and affirmation for their identity. The decision was later vacated when the Supreme Court announced a new standard for evaluating “undue burdens” in the religious accommodation context and returned it to the district court. In late April of this year, the district court again held that the proposed accommodation was an undue burden under the revised standard. This case shows that an employer may apply such policies. Moreover, given that a “last name only” accommodation was unwarranted due to the impact on affected transgender students, this case would lend strong support to an employer’s refusal to allow a full exemption from the policy on religious grounds (for example, a request to be able to affirmatively call a transgender man “she,” or use that employee’s former female name).

That said, whether a religious accommodation is an undue burden is a case-by-case analysis. Other courts have held, at the pleading stage, that certain accommodations of a pronoun policy may be appropriate. For instance, in Haskins v Bio Blood Components, a federal court in Michigan, stated that a plaintiff’s suggestion that she could tell a transgender male that “his gender identity is a personal whim or a mental illness might qualify as harassment under Title VII, and allowing Plaintiff to do this likely would not be a reasonable accommodation even if it did not violate Title VII.” But it also held that transfer might be an appropriate accommodation and refused to dismiss a complaint alleging transfer as a potential accommodation. Thus, while pronoun policies should not be problematic by themselves—and while courts are highly unlikely to require an accommodation that requires the employer to permit an objecting employee to affirmatively call transgender employees by their non-preferred name or pronoun—employers should use care in this area if an employee demands a religious accommodation related to such policies.