Must An Employer Accommodate An Employee’s Refusal To Use A Co-Worker’s Preferred Pronouns?
What is an employer to do when faced with conflicting legal obligations to different employees?
One employee has the right to have their preferred pronouns utilized in the workplace and another is entitled to a accommodation based on her religious beliefs.
That’s the dilemma confronted by the employer in Michigan, Bio Blood Components. The employer terminated the plaintiff because she would not use her co-worker’s preferred pronouns.
The plaintiff alleged that she “had the right of free speech and could not have her speech compelled to tell a lie because she was a believing Christian who will not live a lie.”
AND, and this is the crux of this case, the plaintiff asked her supervisor for a reasonable accommodation based on religion, which her supervisor refused and terminated her without discussion.
The case is Haskins v. Bio Blood Components, Case 1:22-cv-00586 in the United States District Court in the Western District of Michigan.
The court determined that the plaintiff’s complaint stated a viable claim Title VII of the Civil Rights Act of 1964 (Title VII) for a failure to accommodate her religious beliefs and denied the employer’s motion to dismiss.
Let’s Break This Down, Shall We?
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in the workplace.
This law comes into conflict when an employer tries (or does not try) accommodating an employee’s religious beliefs while also respecting another employee’s preferred gender pronouns.
An Employee Has The Right To Determine Pronouns?
In a nutshell, yes.
Gender identity is a protected class under Title VII. This means that an employee cannot be discriminated against based on their gender identity, including their preferred pronouns. Failing to use an employee’s preferred pronouns can create a hostile work environment and lead to discrimination and harassment.
In this survey, the Center for American Progress tallied that more than 1 in 3 LGBTQ+ Americans faced discrimination, including more than 3 in 5 transgender workers.
The Equal Employment Opportunity Commission (EEOC) issued guidance back in 2021, which included a landing page, technical assistance document, FAQs on sex discrimination, and a handy fact sheet about sexual orientation and gender identity workplace rights.
The EEOC guidance clearly explains the prohibition against workplace harassment that creates a hostile work environment based on an individual’s sexual orientation or gender identity and, critically, details examples of harassment, including, “offensive or derogatory remarks about sexual orientation,” as well as, “offensive or derogatory remarks about a person’s transgender status or gender transition.”
Further, to combat widespread discrimination and harassment against LGBTQ+ individuals, a 2021 Executive Order directed all federal agencies to ensure that the usage of pronouns in the federal employment process respects the gender spectrum.
Ok, Makes Sense, and How Do Religious Beliefs Conflict?
Well, I’ll tell you. Title VII also requires employers to reasonably accommodate an employee’s religious beliefs. This can include allowing an employee to wear religious clothing, take time off for religious observances, or refrain from certain activities that conflict with their beliefs.
An employer must accommodate an employee’s religious beliefs unless doing so would create an undue hardship, defined as “more than a de minimis cost” on the operation of the employer’s business.
Is it an accommodation to allow one employee to intentionally ignore another’s preferred pronouns and gender identity?
Permitting an employee to use religious beliefs as a basis to not use someone’s preferred pronouns could open the door to other discriminatory conduct.
In this case, where one employee objected to using another employee’s preferred pronouns due to their religious beliefs, accommodating that employee’s request could create a hostile work environment for the other employee. It could also be seen as discriminatory towards the other employee based on their gender identity, which is a protected class under Title VII.
Employers Must Engage In The Interactive Process When An Employee Requests An Accommodation Based on Religion.
When the employer terminated the plaintiff, the plaintiff sued, alleging that her religious belief conflicted with her employer’s requirement that she use her co-worker’s preferred gender pronouns.
She also alleges that she informed her employer of this conflict and that her employer terminated her without offering any accommodation.
The court punted on this issue and denied the employer’s motion to dismiss, finding that the allegations sufficed to establish a prima facie case of discrimination based on hardship. The United States District Court for the Western District of Michigan wrote:
Defendant responds that it could not reasonably accommodate Plaintiff’s beliefs without suffering an undue hardship. … Specifically, Defendant argues that allowing Plaintiff to continue working for Defendant while refusing to refer to her co-workers by their preferred pronouns would expose Defendant to liability under Title VII. … Defendant argues that using improper pronouns to refer to RS or other transgender employees would amount to unlawful harassment under Title VII. … At this stage, however, it is not clear whether and to what extent Plaintiff used, or intended to use, any pronouns when referring to RS. Plaintiff does not describe the details of RS’s complaint about her. Moreover, individuals working directly with one another generally use names rather than pronouns. As such, the Court cannot assess the nature of the hardship.
In short, the complaint alone does not demonstrate that Defendant could not reasonably accommodate Plaintiff’s beliefs without undue hardship. … Accordingly, the Court will not dismiss Plaintiff’s claim that Defendant failed to accommodate her religious beliefs.chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://milawyersweekly.com/wp-content/blogs.dir/1/files/2023/02/MiWD-Haskins.pdf
Employers have a lot to consider here.
While accommodating an employee’s religious beliefs cannot come at the expense of another employee’s rights or create a hostile work environment, employers must engage in the interactive process when an employee requests an accommodation based on religion.