YES. “Employment at will” is a legal doctrine in the United States that allows employers to terminate employees at any time and for any reason, provided that the reason is not prohibited by law – that includes for refusing to treat coworkers, customers, or other respectfully based on their gender identity. Even if your refusal is based on your sincerely held religious beliefs, your actions will not be protected under the First Amendment nor Title VII of the Civil Rights Act of 1964 if it conflicts with the an employer’s philosophy of affirming and respecting all students.
As our loyal readers know, Title VII provides, in relevant part, that “It shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sexual, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). The United States Supreme Court has also held that gender identity discrimination and sexual orientation discrimination are forms of gender discrimination that are protected under Title VII.
As for religion, “an employer, short of ‘undue hardship,’ [must] make ‘reasonable accommodations’ to the religious needs of its employees.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer proves it is unable to reasonably accommodate an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). Reasonableness of the employer’s accommodation of an employee’s sincerely held religious belief depends on whether the employer can continue to function without undue hardship if the employee is permitted the requested accommodation.
And that’s where we meet John Kluge, a former music and orchestra teacher, who brought a Title VII religious discrimination and retaliation suit against Brownsburg Community School Corporation (“Brownsburg”) after the school terminated his employment for refusing to follow its guidelines for addressing students. Kluge v. Brownsburg Cmty. Sch. Corp., 64 F.4th 861, 864 (7th Cir. 2023). Brownsburg required its high school teachers to call all students by the names registered in the school’s official student database, and Kluge objected on religious grounds to using the first names of transgender students to the extent he considered those names not consistent with their sex recorded at birth. After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes, and in the school generally, as well as the faculty.
Kluge then sued the school for religious discrimination, failure to accommodate his religious beliefs, and wrongful termination.
Kluge identified as Christian, and he believed gender dysphoria “is a type/manifestation of effeminacy, which is sinful.” Kluge described “effeminacy” as “for a man to play the part of a woman or a woman to play the part of a man and so that would include acting like/dressing like the opposite sex.” In addition to believing that gender dysphoria itself is sinful, Kluge believed it is sinful to “promote gender dysphoria.” Because the transgender students changed their first names to “present[ ] themselves as the opposite sex,” Kluge believed calling those students by their preferred names would be “encouraging them in sin.” Whether Kluge met his prima facie elements for religious discrimination was not at issue; the Court found his religious belief to be sincere and in conflict with the school’s policies. Instead, the issue was whether Kluge’s requested accommodation posed an undue hardship on the school.
The key to any request for an accommodation in the workplace is whether the requested accommodation would cause undue hardship on the employer. The Seventh Circuit Court of Appeals found the last-names-only accommodation burdened Brownsburg’s ability to provide an education for all students and conflicted with the school’s philosophy of creating a safe and supportive environment for all students. The court held Brownsburg did not have to allow an accommodation that unduly burdened its business of educating all students in a supportive manner. Kluge, 64 F.4th at 878. “A practice that indisputably caused emotional harm to students and disruptions to the learning environment is an undue hardship to a school as a matter of law.” Id. at 886. The last-names-only practice conflicted with the school’s philosophy of affirming and respecting all students, as the accommodation resulted in students feeling disrespected, targeted, and dehumanized, and in disruptions to the learning environment.
Kluge balanced the gender identity rights of students against the religious rights of teachers, and in this case, the scales tipped in favor of the students. That is not to say refusing to address transgender people by their chosen first names and pronouns because of one’s sincerely held religious beliefs will always result in termination of employment. It will be a case-by-case basis, subject to an analysis of the hardship placed on the employer. However, it is likely that refusing to call a coworker by his/her/their chosen name or use customers’ preferred pronouns will likely be held an undue burden because it would impact the rights of others.
Think about it this way, courts have recognized that discrimination based on an individual’s gender identity or transgender status can be a form of sex discrimination under Title VII. This includes discrimination based on the use of preferred pronouns. Therefore, if a coworker’s refusal to use an individual’s preferred pronouns creates an intimidating, hostile, or offensive work environment, it could be considered a form of sex discrimination and a violation of Title VII. If the employer fails to take action, it could face a hostile work environment claim based on gender identity. This would certainly be considered an undue burden on the employer to subject it to a hostile work environment.
What should I do if my employer allows coworkers to call me by the wrong pronouns?
Unfortunately, there are still a lot of hostile feelings directed at the transgender community. If you boss or manager is violating your gender identity or sexual orientation rights under Title VII, or if the company you work for does not stop LGBTQAI discrimination or harassment in the workplace, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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