Readers of this blog know that the EEOC recently finalized its new workplace harassment guidance and that one of the contentious issues in the guidance, according to a dissenting EEOC Commissioner, is the EEOC’s position that misgendering an employee, e.g., by consistently using the wrong pronouns, can violate Title VII.
The EEOC’s position has legal support. For example, I wrote here about an Eleventh Circuit decision in which the appellate court concluded that misgendering an employee can be severe and pervasive enough to create a hostile work environment.
But what about when Title VII forces collide, like when a teacher with sincerely held religious beliefs requests an accommodation to refer to students — cisgender and transgender alike — by their last names? Does the school have to provide that accommodation?
Earlier this week, a federal court concluded that providing that accommodation would create an undue hardship, and I’ll explain why.
First, let’s return to the Supreme Court’s decision in Groff v. DeJoy. In that case, the Court held that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
But a “particular business” is relative. For example, a school is not a corporation focused on profit. Indeed, the defendant school in the misgendering case argued that accommodating the teacher would undermine its business of “fostering a safe, inclusive learning environment for all students.”
The plaintiff countered that “letting [him] call all students by last names prevents nobody from attending the school,” and the law did not mandate safe and inclusive learning.
However, the judge noted that an employer may define a legitimate mission—here, providing a supportive environment for students—contradictions to which may create an undue hardship. Plus, there was evidence that the plaintiff’s behavior was insulting and offensive, made his classroom environment unwelcoming and uncomfortable, and apathetically robbed transgender students of their dignity. Thus, Title VII did not require the defendant to allow an accommodation to unduly burden its “business.”
Also, consider the potential liability if the defendant did accommodate the plaintiff. Continuing a last-name policy could have exposed the defendant to an unreasonable risk of liability—discrimination based on transgender status violates Title IX.
“Title VII does not require an employer to grant a religious accommodation that would place it on the ‘razor’s edge’ of liability,” noted the court.
Therefore, under these specific facts and circumstances, accommodating the plaintiff would create an undue hardship for the employer.
Your mileage, however, may vary depending on differing facts and circumstances, most notably whether granting an accommodation would result in substantial increased costs in relation to the conduct of your particular business. But since discrimination based on transgender status also violates Title VII, I might make the same argument as the defendant here.
However, since I’m not your lawyer, and I’m not giving legal advice, I suggest you consult with your outside legal counsel should a situation like this arise in your workplace.