You develop policies and train everyone — especially your managers — on how to handle situations like the example I have for you today.
This lawsuit involves a plaintiff who filed a complaint — remember, these are just allegations — stating that she routinely interacted with a coworker with female genitalia who identifies as a man and wanted to be referred to by male pronouns. The plaintiff, a “believing Christian,” sincerely believed complying with this request would infringe upon her religious beliefs. She did not want to use male pronouns when referring to her coworker.
According to the plaintiff, her supervisor informed her that he coworker had filed a complaint about her. The supervisor explained that the coworker “had the right to not be bullied or harassed.” The plaintiff responded 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.” So, the plaintiff asked for a “religious accommodation,” but her supervisor denied that request “without any consideration” and asked the plaintiff to write a letter of resignation. After the plaintiff refused to resign, the defendant terminated her employment.
In the lawsuit, the plaintiff claimed that the defendant refused to provide her with a reasonable (any?) religious accommodation. To prevail, she must show that she (1) holds a sincere religious belief that conflicts with an employment requirement; (2) informed the employer about the conflicts; and (3) was discharged or disciplined for failing to comply with the conflicting employment requirement. The burden then shifts to the defendant to show that the requested accommodation was unreasonable and created an undue hardship.
Let’s focus on the employer’s responsibilities here.
An employer need not accommodate an employee’s religious beliefs when it creates an undue hardship on the business.
Here, in its motion to dismiss, the defendant claimed that allowing the plaintiff to mispronoun her coworker would expose it to liability under Title VII for fostering a hostile work environment. That may be true. But courts can’t assess that early in the case. It can only go by what a plaintiff pleads in her complaint.
Here, the court did not know whether and to what extent the plaintiff used, or intended to use, any pronouns when referring to her coworker. She did describe the details of her coworker’s complaint about her. The court also noted that individuals working directly with one another generally use names rather than pronouns. So, the court could not assess the nature of the hardship and denied the motion to dismiss.
By the end of the year, the Supreme Court will likely change the undue hardship standard. But, for now, even if the bar is low to demonstrate undue hardship, an employer still must engage the employee in good faith to discuss the situation.
Picking up on the court’s cues, had the supervisor discussed the matter substantively with the plaintiff and allowed her to address the coworker using the coworker’s first name only rather than the coworker’s preferred pronouns, the problem would have been solved. But that comes from employers identifying the use of preferred pronouns as a more prevalent workplace issue, developing policies, and training the workforce on how to address these situations when they arise.
Proactive attention to these issues defuses potential conflicts at work and avoids lawsuits altogether.