He Said, She Said: Untangling Pronouns in the Workplace Part 2: Employer Policies

In recent years, employers have faced a controversial issue in the workplace: preferred gender pronouns. In this two-part series, we discuss the legal issues associated with the use of gendered pronouns in the workplace and the rights that employees have with respect to using or not using preferred pronouns.

In Part 1, we discussed discuss the rights of both transgender employees and religious employees under applicable laws. In this second installment, we address what policies and procedures employers can have in place to respect the rights of all employees and avoid liability.

Between Scylla and Charybdis

In the ancient epic, the Odyssey, the poet Homer described a scene in which the hero Odysseus had to pass his ship through the narrow gap between two great sea monsters; a six-headed sea serpent named Scylla, and the gulping maw of a massive whirlpool named Charybdis. The phrase “between Scylla and Charybdis” has come to describe a situation where someone must navigate a narrow channel between two risks.

Employers in today’s legal environment can find themselves between a “Scylla” of potential liability for sex discrimination, and a “Charybdis” of potential liability for religious discrimination. To navigate the narrow passage between these two risks, employers should have effective policies that respect the legal rights of all employees.

Striking the Balance: Employer Policies that Protect Everyone’s Rights

As we discussed in Part 1, Title VII of the Civil Rights Act (as well as many similar state laws) protect transgendered employees from discrimination and harassment. Laws also protect religious employees with faith-based objections to transgenderism. Under many of these laws, the intentional reference to an employee by names and pronouns different than those they prefer can constitute harassment on the basis of sex. If co-workers are alleged to do this, the offended employee complains to management or HR, and the employer does not take corrective action, the employer could be liable for being deliberately indifferent to a hostile work environment. This risk encourages employers to have policies that give notice of zero tolerance for harassment and require investigation of harassment complaints.

On the other hand, if an employee requests an accommodation to a policy about preferred pronoun usage in the workplace based on sincerely-held religious beliefs, the employer must enter into a good-faith, interactive dialogue with that employee to determine a reasonable accommodation. And remember, as discussed in Part 1, an employer must provide an accommodation that resolves the employee’s religious conflict unless the accommodation would result in substantial increased costs in relation to the conduct of the employer’s particular business. If an employer denies a religious accommodation without meeting this standard of undue burden, or if the employer disparages or shows hostility towards the employee’s religious beliefs, then the employer can be liable for religious discrimination.

Employers should have workplace policies that account for both sets of rights and both liability risks. Such policies will generally have the following five features:

• No Harassment. Policies will forbid employees from harassing one another on the basis of sex, including the intentional misgendering of colleagues.
• Good Reporting. Policies should encourage and provide an avenue for employees to report harassment in the workplace. The policies should also provide a procedure for how such complaints or reports will be investigated by management or HR and how confirmed acts of harassment will be disciplined.
• Interactive Discussion. Policies should welcome employees with religious beliefs that conflict with employer policies to request an accommodation. Policies should include a clear procedure to have an interactive process to determine a reasonable accommodation. Religious accommodations should be granted unless they would result in substantial increased costs in relation to the conduct of the employer’s particular business.
• Dignity and Respect. Employers should make it clear that all employees are treated with dignity and respect and that no employee’s beliefs or identity is disparaged or treated in a hostile way in the workplace.
• Religious Beliefs. If the employer is a religious organization, it may want to outline its own faith-based position.

Having a policy that includes these general characteristics can help employers navigate the narrow passage between a sex discrimination “Scylla” and a religious discrimination “Charybdis.”

You Can’t Please Everyone, but You Can Be Wise

Even if an employer has effective policies, is responsive to complaints, and tries to work things out, it is not a guarantee that problems will not arise or that all employees will always be satisfied with the outcome of a dispute. According to Homer, Odysseus still lost a few men to the sea monster Scylla, but he avoided the complete loss of his ship to the whirlpool Charybdis.

However, having effective policies that respect and protect the legal rights of all employees will not only help ensure a workplace marked by fairness and equality, but will also help prevent legal liability. As with all other workplace policies and employment legal issues, employers should consult with experienced legal counsel to ensure that their policies are designed to prevent and minimize legal risks.

________________________________________

Featured Image by Rebecca Sidebotham.