What You Need to Know Today About Gender Inclusion: Beyond Pronouns

While employers know to have comprehensive anti-discrimination and harassment policies in place, having workplace policies supporting employees who choose to transition their gender is also important.

Well-thought-out policies will ensure that an employee who announces an intent to transition their gender will feel assured and respected in the workplace.

However, an unexpected challenge can arise when another employee expresses a refusal to acknowledge the transitioning employee and disregards the correct name and pronouns. The objecting employee may cite a sincerely held religious belief as the foundation for their objection or even threaten to file a lawsuit on religious grounds.

Consequently, employers must understand how to effectively navigate the laws surrounding employees’ civil rights and religious freedom while maintaining a safe and respectful workplace.

What You Need to Know – The Bottom Line

In the evolving landscape of corporate America, the intersection of LGBTQ+ rights and religious freedom presents a complex challenge for organizations striving to foster inclusive workplaces.

Religious liberty and civil rights are both engrained in the U.S. Constitution, yet both rights have encountered significant hurdles and legal challenges over the years, ultimately leaving more questions than answers.

Employers are left wondering how to handle these issues, particularly those involving conflicting rights or competing ideologies. 

Monitoring new case law is also a challenge. Each year, pending cases and legal challenges potentially offering clarity appear only to increase and lead to even more litigation and questions.

While no one approach will work for every employer in every circumstance, embracing certain principles of inclusivity and being mindful of recommended best practices can provide some light by which to navigate this tunnel. Balance is, therefore, a must.

What You Need to Know – Information and Analysis

Religious Accommodation

The foundation for religious accommodation jurisprudence lies in the First Amendment of the U.S. Constitution. It reads: “Congress shall make no law respecting an establishment or religions or prohibiting the free exercise thereof.” Courts have found two principles of religious liberty in this sentence.

The first, known as the “Establishment Clause,” prohibits the government from coercing citizens in religious matters. In other words, the Establishment Clause provides citizens the right to be free from religion.

The second is the “Free Exercise Clause,” which establishes the concept of freedom of religion. This language prohibits government hostility toward a religious group or practice.

Generally, to determine whether a “neutral law of general applicability that incidentally burdens religious practices” fails constitutional consideration, courts will evaluate whether the government had a “rational basis” for enacting the legislation in question (Emp’t Div. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990)). 

Under this rational basis standard of review, most laws survive a court’s analysis.

Concerned that rational basis review would result in the limitation of religious liberty, Congress enacted the Religious Freedom and Restoration Act of 1993 (RFRA). 

The RFRA provides that courts must strictly scrutinize any law that “substantially burdens religious exercise.” About half of the states have enacted similar laws. 

Two recent cases in the employment context demonstrate the Court’s ongoing support of religious liberty when pitted against other competing rights.

In Kennedy v. Bremerton School District, the Court held that a school district infringed on an assistant football coach’s rights under the Free Exercise Clause of the First Amendment when it suspended him for continuing to pray publicly after football games in violation of its policy (Kennedy v. Bremerton Sch. Dist., No. 21-418, 2022 U.S. LEXIS 3218 (June 27, 2022)). 

Although the constitutional rights at play in Kennedy do not apply to private employers, the holding is in keeping with the Court’s approach to similar cases.

In a case with more direct implications for employers, the Court changed the religious accommodation standard under Title VII of the Civil Rights Act (Groff v. DeJoy, No. 22-174 (June 29, 2023)).

Under Title VII, employers are required to reasonably accommodate employees whose sincerely held religious beliefs or observances conflict with work requirements unless doing so would create an undue hardship for the employer.

Absent a statutory definition of “undue hardship,” courts have relied on precedent, which held that requiring an employer “to bear more than a de minimis cost in order to give [an employee] Saturdays off is an undue hardship”(TWA v. Hardison, 432 U.S. 63 (1977)).

In Groff, the Court held that ”undue hardship is shown when a burden is substantial in the overall context of an employer’s business.” This is a significant change from what the Equal Employment Opportunity Commission (EEOC) and courts have stated (and on which employers have relied on for years).

Civil Rights

The constitutional origin for civil rights for LGBTQ+ people is the Equal Protection Clause of the Fourteenth Amendment.

This clause prohibits governments from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
 
The U.S. Supreme Court recognized the constitutional rights of LGBTQ+ citizens under this amendment in 1996 when it invalidated a proposed Colorado law that would have prohibited the state from enshrining LGBTQ+ protections in statute (Romer v. Evans, 517 U.S. 620, 627, 116 S. Ct. 1620, 1625 (1996)).

The Court then formalized civil rights protections for LGBTQ+ people in ever-widening circumstances in subsequent cases. (Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003)) (invalidating as unconstitutional a Texas law making it a crime for two persons of the same sex to engage in certain types of intimate conduct); United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (2013) (overturning the Defense of Marriage Act)).

For example, the majority of Supreme Court justices recognized the fundamental right to marriage for non-heterosexual couples in Obergefell v. Hodges, 576 U.S. 644, 711, 135 S. Ct. 2584, 2625 (2015).

In his dissent, Chief Justice John Roberts hinted at legal challenges on the horizon when he noted, “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.” 

He went on to warn, “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.”

When Civil Rights and Religious Liberty Collide

In 2020, the U.S. Supreme Court issued the landmark decision in Bostock v. Clayton County, which rendered it unlawful under Title VII not to hire, fire, or negatively impact an employee based on their sexual orientation or gender identity.

While providing needed clarity on federal anti-discrimination employment protections, the decision left many unanswered questions, calling those “questions for future cases.” For instance, the Court declined to address the potential conflict between religious liberty and civil rights that often arises in the workplace.

Addressing this issue could have provided further compliance guidance, as courts tend to favor religious liberty when called on to balance the two concepts, particularly in the context of public accommodations.

Three years after Bostock, the Court addressed this issue. In 303 Creative LLC v. Elenis, the Court weighed the rights of LGBTQ+ people to be free from discrimination in the marketplace against a Colorado business owner’s First Amendment right to free speech (303 Creative LLC v. Elenis), No. 21-476 (June 30, 2023)).

A web and graphic design business owner brought a “pre-enforcement” challenge. A pre-enforcement challenge allows an individual or a business to challenge a law in court before being subject to its enforcement, seeking an exemption from Colorado public accommodation laws enforcement that would allow her to refuse to provide web services for same-sex marriages.

Analogizing its previous First Amendment jurisprudence, the Court concluded that requiring a business owner to “defy her conscience about a matter of major significance” would violate the First Amendment’s protections.

While we can guess the Court’s ideological leanings based on these holdings, this metric is not infallible and largely depends on the state where the complaint is brought and the types of claims the plaintiffs want to pursue.

Plaintiffs are generally reluctant to argue they require a religious exemption from public accommodation laws because, as noted above, these claims will likely fail if brought in a state with no RFRA.

Instead, plaintiffs bring these claims under the Free Speech Clause of the First Amendment, which the Court has interpreted as prohibiting a government from punishing a person (or a business) for refusing to adhere to or articulate a specific message. This argument is particularly well-suited to religious liberty claims based around a religious plaintiff’s refusal to call a transgender coworker the correct name or pronouns.

For example, in a recent U.S. Court of Appeals for the Fifth Circuit case, the court considered whether expanding Title VII’s protections to LGBTQ+ people violated the free speech clause of the First Amendment and the RFRA (Braidwood Mgmt v. EEOC, 70 F.4th 914 (5th Cir. 2023)).

In that case, two companies identifying as Christian argued their sincerely held religious beliefs exempted them from having to comply with Title VII’s anti-discrimination protections for LGBTQ+ people, asserting it was unconstitutional compelled speech.

The conservative-leaning Fifth Circuit agreed, finding a business entity’s right to discriminate against certain individuals was protected by the First Amendment and the government lacked a sufficient compelling interest in protecting certain individuals from discrimination.

The Fifth Circuit limited its holding to the individual claims before it, declining to weigh in on whether an employer hoping to discriminate against LGBTQ+ people for non-religious reasons could do so under the compelled speech theory.

The impact of the Supreme Court’s shift toward favoring religious rights over civil rights is apparent in the procedural journey of a music teacher’s religious discrimination claim (Kluge v. Brownsburg Cmty. Sch. Corp., 64 F.4th 861 (7th Cir. 2023)).

In that case, a school district fired a music teacher for refusing to adhere to district policy requiring teachers to call students by the correct names and pronouns.

The teacher filed a complaint, alleging the district failed to accommodate his sincerely held religious beliefs that transgender, non-binary, or gender non-conforming students must go by the name and pronouns he deemed appropriate to the gender assigned at birth.

After holding oral arguments, but before issuing a decision, the U.S. Court of Appeals for the Seventh Circuit ordered the parties to file supplemental briefs in light of the U.S. Supreme Court’s holding in Kennedy v. Bremerton School District.

After considering the briefs, the Seventh Circuit found in favor of the school district. The plaintiff filed for an en banc rehearing, and while his request was pending, the Supreme Court issued its decision in Groff v. DeJoy. The court again ordered the parties to submit briefs.

This time, the court vacated its decision and remanded the case to the district court for further consideration in light of the newly articulated Groff standard. While a second district court decision is pending, students, teachers, and school administrators are left unsure of their rights and obligations under the law.

In Michigan, religious organizations are challenging state laws that designate gender identity and sexual orientation as protected classes. One Christian healthcare center and two Roman Catholic parishes are claiming these laws, if enforced as intended, would hold them liable for refusing to hire LGBTQ+ workers or use people’s correct pronouns.

Importantly, a recent claim filed with a state human rights commission may help explain the next staging area for this conflict. In his claim, an employee alleges his employer discriminated against him on the basis of religion when it terminated him for failing to adhere to company policies.

In response to the employer asking employees to identify their pronouns, the employee, a Catholic, identified his pronouns as “Assigned by God.” He refused to change this designation despite repeated counseling efforts. 

He then insisted on referring to a coworker by the wrong name and pronouns, announcing it was “against my faith/religion to affirm gender ideology.”

The employer terminated the employee for clear policy violations, and the employee filed his complaint, which is still pending.

Now That You Know – Key Takeaways

Regardless of the changing legal landscape, discrimination on the basis of sexual orientation and transgender status remains illegal on a federal level and in many states. Employers’ obligations under the law remain.

Employers can look to the EEOC for guidance. The EEOC offers technical guidance for employers on workplace religious accommodation, including “Special Considerations for Employers When Balancing Anti-Harassment and Accommodation Obligations With Respect to Religious Expression.”

The EEOC is clear that “an employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of coworkers, because that would pose an undue hardship for the employer.”

An undue hardship can include “adverse effects on employee morale or workplace productivity” that result from an accommodation. Considered within the framework of this guidance, accommodating an employee’s sincerely held religious belief that gender is immutable may impose undue hardship on the employer.

Recently, EEOC Vice Chair Jocelyn Samuels offered her views on the friction between religious accommodation requests and the civil rights of LGBTQ+ employees.

In discussing the Groff decision, Samuels noted that it does not address questions on what constitutes a sincere religious belief or how to navigate a conflict between religious beliefs and job duties. She cautioned employers to navigate requests for religious accommodation “very carefully.”

On the flip side of the issue, the EEOC recently settled a transgender harassment lawsuit with a New York restaurant accused of forcing an employee to quit to escape harassment at work.

 The EEOC will likely pursue more transgender discrimination cases based on its strategic enforcement plan for the years 2024–28. One priority in the plan is “Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination,” which explicitly includes LGBTQ+ workers.

Employers should continue fostering a work environment that empowers employees to express their authentic identities. Part of maintaining this inclusive culture is creating general policies that support LGBTQ+ employees in their day-to-day workplace experiences.

For example, gender-specific dress and grooming rules create unwelcoming environments for employees of all gender identities. Similarly, employers should provide gender-neutral bathroom options, if possible, or implement a policy that employees may use the facilities that correspond with their gender identity.

The employer should also create and disseminate a comprehensive employment policy that sets expectations around the use of correct pronouns and names and includes a clearly defined complaint procedure to report policy violations.

The policy should stress the confidential nature of personal medical information and identify the types of personal questions that are inappropriate to ask in the workplace. In addition to implementing a policy, the employer’s harassment prevention training should address issues of gender identity and sexual orientation discrimination, as well as micro-inequities and micro-aggressions.

Employers should consider implementing gender transition guidance and policies that map out a clear pathway for the transitioning employee, managers, and HR to follow in promoting a truly inclusive workplace culture where people can be their authentic selves and not be subject to harassment or discrimination.

If another employee expresses concern about a colleague’s gender transition, employers should listen to these concerns and have honest conversations that acknowledge the employee’s apprehension while also reinforcing company values of inclusivity. 

Similarly, employers must counsel concerned employees about the use of language, correct pronouns and names, and non-negotiable respect for all employees’ privacy. 

Author: Michelle E. Phillips, Principal (Jackson Lewis)