The societal debate over what the term “sex” means regarding an individual’s gender continues to draw battle lines and create confusion in all sectors of society. In June 2020, the United States Supreme Court issued its decision in Bostock v. Clayton County, Ga. addressing whether Title VII’s prohibition on discrimination because of “sex” covered discrimination based on sexual orientation and/or transgender status, the latter more broadly viewed within the context of gender identity.
Because discrimination based on characteristics not covered under Title VII do not create a legal claim for discriminatory termination under the civil rights statute, it would seem logical the Court would first address what the term “sex” means in the statute. In reaching its conclusion, however, the Court determined that it did not need to reach that question but proceeded in its analysis “on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.”
While the Court was willing to accept, for purposes of argument, that sexual orientation and transgender status were “factors other than sex” under Title VII, the Court nevertheless concluded in a 6-3 decision that an employer’s termination of an employee because of the employee’s sexual orientation or transgender status was so inextricably intertwined with the employee’s sex as male or female that termination on the basis of sexual orientation and/or transgender status violated Title VII’s prohibition on discrimination “because of … sex.”
The Court, however, expressly left open questions of sex-specific dress codes, restroom and locker room access, and religious objections in various potential scenarios. As a result, the Court left more muddled than clear the question of whether an employer is required to treat an employee consistent with the employee’s gender identity or with the employee’s biological sex. The breadth of this debate is far beyond the narrow focus of this article, which addresses the use of pronouns when referring to persons – namely what most were taught as children, that boys are “he/him” and girls are “she/her”. Now, however, the use or alleged misuse of pronouns may result in employment law claims under Title VII.
Interpreting Title VII and bolstered by the Court’s Bostock decision, the United States Equal Employment Opportunity Commission (EEOC) updated its guidance on the application of Title VII when it comes to sexual orientation and gender identity. Specifically with regard to pronouns, the EEOC’s 2021 “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” states at No. 11 that “in certain circumstances . . . intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
This guidance, which the EEOC notes does not have the force of law, is consistent with prior guidance issued under the Obama Administration that the use of names and pronouns when referring to individuals should be consistent with the individual’s gender identity, even when the gender identity is inconsistent with the individual’s biological sex.
This very issue was before the Sixth Circuit Court of Appeals in March 2021 in the case of Meriwether v. Shawnee State University. There, Professor Meriwether was a 25-year veteran with a spotless record. In his philosophy classes, he addressed his students as “Mr.” or “Ms.” believing a more formal addressing of his students added to the weight of the topics discussed in class, which could include controversial topics being debated in contemporary society. As a devout Christian, he maintains that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.”
As a result, Professor Meriwether objected to referring to a male student who identified as female by “Ms.” or female pronouns and vice versa. This became an issue in 2016 when the university emailed all faculty that they were now required to refer to students “by their ‘preferred pronoun[s].’” When he approached his Department Chair about possible accommodations given his religious beliefs, Professor Meriwether was told there were no exceptions. During the conversation, the Department Chair was derisive of the professor’s religious beliefs and even professed that the “presence of religion in higher education is counterproductive.”
Two years later, Professor Meriwether was teaching his Political Philosophy class when he responded to a student’s question with “Yes, sir.” After class, the student approached the professor “demanding” to be addressed as female because the student identified as a woman. Professor Meriwether declined, believing that to do so would be acknowledging a falsity, namely that a male student could become female. The professor recommended a compromise of referring to the student by the student’s last name. The student objected, making several complaints – to which the university responded by demanding that Professor Meriwether use the student’s preferred pronouns or eliminate all sex-based pronouns and titles (an impossibility).
At one point during the saga, the professor offered to use the student’s preferred pronouns provided he be permitted to place on his syllabus an explanation that he was doing so under protest and stating his views on the subject. The school refused this latter accommodation claiming that should the professor state his views on the subject, his expression would be in violation of the university’s anti-discrimination policy.
Although the student continued to participate in class without incident and ultimately received a high grade, the university instituted an investigation, which was viewed as highly flawed by the Court, and ultimately issued a formal reprimand to the professor. He was told that any further violation would result in further disciplinary action, up to and including termination. His appeal was summarily dismissed with the university refusing to even consider his religious views on the matter, but instead “equating his views to those of a hypothetical racist or sexist.”
The Sixth Circuit reversed the dismissal of the professor’s constitutional claims asserting violations of free speech and of both the Free Exercise and Establishment of Religion clauses of the First Amendment. The Court noted there was no basis to find that Professor Meriwether’s actions created a hostile educational environment. The Court explained:
“When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe’s last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using propounds Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have ‘create[d] a hostile learning environment that ultimately thwarts the academic process.’”
It is this observation that will likely have significance for private employers.
The EEOC has noted that while Title VII requires employers to accommodate employee’s religious practices and beliefs, employers are not required “to accommodate religious expression that creates, or threatens to create, a hostile work environment.” Employers certainly should take steps to ensure that no employee is harassed or mistreated based on sexual orientation, gender identity, or religious beliefs on these or other matters. While it is not always easy to balance the interests of an employee with a gender identity inconsistent with the individual’s biological sex and another person’s sincerely held religious beliefs concerning human sexuality, it can be done.
The Meriwether court points out that it is not either/or but can be both/and. There was no disputing that requiring Professor Meriwether to affirm that a person can change sexes through the manner and words used to address the person would violate his religious beliefs. It was also clear that the student had a right to fully participate in the educational program. The court found that both interests were protected using Professor Meriwether’s proposed compromise, even though not to the student’s full satisfaction.
Employers may be called upon to address similar issues in the workplace. In doing so, the starting point is that all employees deserve to be treated with dignity and respect and that there should be a compromise that everyone can live with, even if one or both is not entirely happy with the outcome. This may vary depending on the work environment, the level and frequency of interaction between the employees, and frankly the willingness of the employees to see and respect the other’s point of view.
While the Supreme Court declined to address issues such as pronouns, dress codes, or restroom and locker room access in its Bostock decision, employers will be forced to address those issues. The EEOC has concluded that an employee’s professed gender identity is dispositive of all of these questions without regard to the thoughts, feelings, or religious convictions of any other employee. The courts, however, will continue to wrestle with these questions in light of Bostock.