Ask The Lawyer By: Daniel A. Gwinn, Esq.- Pronouns Put Employer in the Hot Seat!

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QUESTION:  Two of my employees are putting me in the middle of the culture wars, and I don’t know what to do. One worker has been with the company a long time and is very good at her job (I’ll refer to her as A) the other, hired recently and who has a great skill set, is a transgender woman (I’ll refer to her as B). The problem is that A refuses to use B’s pronouns, or address B by her chosen first name (she avoids using the “wrong” name by referring to B by her surname). B says she is “insulted and demeaned” by A’s refusal. Both workers are outstanding at their respective jobs, and I’d like to keep both. Any advice?

ANSWER:     Ouch! You are really caught between a rock and a hard place! But the sad news is that if you allow A to use masculine pronouns for B or call her by her surname (when A presumably addresses other co-workers by their first names), you may be on the wrong end of a lawsuit.

While the issue is highly contentious — and is still being debated — Michigan and federal courts have held that a refusal to use a person’s preferred pronoun is a form of sexual discrimination. On September 27, Michigan’s Supreme Court ordered all judges to address those who appear in court by their preferred pronouns or “other respectful means.”

However, if A’s reason for her refusal to use B’s first name and her pronouns is based on a sincerely held religious belief, the situation becomes complicated.

The status of employees’ rights to be addressed by a preferred pronoun have become increasingly murky, especially when going up against a claim based on religious beliefs. And when the employer is a public entity, such as the state or federal government, or a public school district, a statutory claim to religious rights may turn into a Constitutional claim for protection of rights under the rights the First Amendment. (The First Amendment protects Americans from state action that denies speech or religious rights.)

Just over three years ago, the U.S. Supreme Court ruled in Bostock v Clayton County that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation or gender identity. To many, that included a right to be referred to by a preferred pronoun. But the Supreme Court’s decision did not help clarify that question. The Court said the only issue it was deciding was whether firing someone “simply for being homosexual or transgender” was a form of sex discrimination. It was not addressing issues about access to “bathrooms, locker rooms or anything else of the kind.” Whether pronouns were included in the category of “anything else” was clear as mud.

This judicial equivocating did not deter the Equal Employment Opportunity Commission (EEOC), which for years had been treating as discrimination an employer’s refusal to let a trans individual use the bathroom — or pronouns — that align with their gender identity. In the months after the Supreme Court’s Bostock decision, the EEOC released guidelines that stated refusal to use a worker’s pronouns is a form of discrimination — and one that is actionable under the law.

A year ago, a federal court in Texas vacated the guidance for going beyond the requirements of the Bostock decision.

Despite continued support from many courts and the EEOC for an interpretation of the law that includes a requirement that employers honor a worker’s preferred pronouns, worker’s rights in this area are not guaranteed.

As the strength of a worker’s right to preferred pronouns waned, the Supreme Court and others gave greater protection to workplace claims of religious discrimination.

Until this past summer, employers could use a pretty lenient standard when deciding whether a worker’s religious views or practices required an accommodation from their employer. Anything that imposed more than a minimal cost or inconvenience on the employer was viewed as too much. In June, the Supreme Court established a new standard with its opinion in Groff v DeJoy. Now, employers should grant workers an accommodation for their religious beliefs — such as allowing them an exemption from Sunday work — as long as the accommodation will not cause “substantial harm” to the employer. What “substantial harm” might be must be decided pretty much on a case-by-case basis.

If you fire A, and if her refusal to use B’s pronouns is based on a view that to do so would violate her religious beliefs, you might be sued for violating her right under the law, and maybe — if you are a public employer — her First Amendment rights. It is unclear whether allowing A to use B’s surname is a “reasonable accommodation” or whether opening yourself up to a lawsuit from B would be the kind of “substantial harm” that would allow you to insist A use B’s preferred pronouns. The Seventh Circuit ruled in April that a high school teacher’s religion-based decision to call all of his students by their last names to avoid calling a few transgender students by their preferred names “harmed students and disrupted the learning environment” and placed an undue burden on the school district. But that case was decided before the Supreme Court changed the rules.

On the other hand, if you allow A to continue to refuse to acknowledge B’s identity, you may be hit by a lawsuit from B, claiming you are encouraging sex discrimination and creating a hostile environment. If you fire B, to placate A, the situation is even worse: B can claim she was terminated for being transgender, a violation of Title VII and Bostock.

The bottom line is that what this situation may need is for both employees to understand the rights that are in conflict. Consulting with an attorney beforehand could, at the least, help you avoid legal pitfalls this issue presents.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]