He Said, She Said: Untangling Pronouns in the Workplace Part 1: Employee Rights

In recent years, employers have had to confront a controversial issue in the workplace: preferred gender pronouns. In this two-part series, we will discuss the legal issues for using preferred pronouns in the workplace and the legal rights that all employees have with respect to using or not using preferred pronouns.

A Bostock Background: Rights of Transgender Employees

Legal protections for LGBTQ employees have rapidly developed in recent decades. Since 2000, a number of states have passed laws forbidding employment discrimination on the basis of sexual orientation and gender identity (SOGI). In 2020, the U.S. Supreme Court decided that a federal employment statute¹ outlawing discrimination on the basis of “sex” also applies to discrimination on the basis of SOGI status.

After this decision, the Equal Opportunity Employment Commission (EEOC) issued guidance stating that “use of pronouns or names that are inconsistent with an individual’s gender identity” could be harassment or hostile work environment in violation of Title VII. Several states have issued their own laws saying that failure to use an employee’s preferred pronouns is a form of harassment or discrimination.

Thus, state and federal anti-discrimination laws often require employers to refer to employees by their preferred names and gender pronouns. The same laws may also require employers to insist that workers use the preferred pronouns of their colleagues. Otherwise, employers may face liability for being deliberately indifferent to complaints of a hostile work environment.

A Groff Grind: Rights of Religious Employees

But Title VII also prohibits discrimination on the basis of religion and requires employers to make reasonable accommodations for an employee’s religious beliefs and practices. As we recently discussed, the U.S. Supreme Court’s 2023 decision in Groff v. Dejoy clarified that an employer may deny a reasonable accommodation only when “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The Court commented that burdens on co-workers, without an actual effect of substantial increased costs, were not sufficient grounds to deny a religious accommodation.

As applied to pronoun usage in the workplace, the Groff decision may grind against anti-discrimination laws that require employees to use their colleagues’ preferred pronouns in the workplace. For example, in one case,² a music teacher sued his employer after it withdrew a religious accommodation that allowed him to refer to students by their last names. Both the trial court and the Seventh Circuit Court of Appeals concluded that the teacher’s claim failed because allowing this accommodation imposed an undue hardship on the school district. However, after the Groff decision, the Seventh Circuit’s decision was vacated and remanded back to the trial court to apply the new Groff standard for religious accommodations. Time will tell whether Groff will result in a different outcome in this case.

The takeaway here is that while Title VII and state law employment discrimination statutes provide protections for transgender employees, often in the form of workplace policies that require preferred pronoun usage, the same laws may give religious employees the right to accommodations under these policies. Also, government employees may have added protections for free speech and free exercise of religion under state and federal constitutions, as well as under state and federal statutes that prohibit unjustified government burdens on religion.

Pick Your Poison?: Navigating Competing Demands of Discrimination Laws

The competing rights of employees under anti-discrimination laws can put employers in a dilemma. An employer may have to choose between the risk of a hostile environment lawsuit from someone using preferred pronouns or a lawsuit from a religious employee for failure to make accommodations.

In Part 2 of this series, we will address what policies and procedures employees can have in place to respect the rights of all employees and avoid liability.

________________________________________

Featured Image by Rebecca Sidebotham.

¹ Bostock v. Clayton County, evaluating Title VII of the Civil Rights Act

² Kluge v. Brownsburg Community School Corp.