May 29, 2020

Employee Pronouns: Two Key (And Developing) Legal Issues

by Bill Nolan, Barnes & Thornburg LLP

More employers are calling with questions about a team member’s chosen pronouns. These situations typically raise two legal issues.

Failure to respect pronoun choice could create an unlawful hostile environment.

Assume for a moment that discrimination on the basis of gender identity or expression is unlawful. Think creepy boss sexual harassment as an analogy. If sufficiently severe, that is gender discrimination in the terms and conditions of employment. The same could be true of a persistent refusal to respect pronoun choices.

About that assumption though: Discrimination on the basis of gender expression or identity is not always prohibited. The U.S. Supreme Court any day will issue decisions answering that question under Title VII. Almost half of the states (not Ohio) and many municipalities (including Columbus) prohibit such discrimination.

Also, it seems clear that refusal to respect pronoun choice will need to be “severe and pervasive” in order to be actionable. This has proven to be a high standard for harassment claims. Milo v. Cybercore Technologies illustrates the severe and pervasive point in a case brought by a transitioning employee.

The employer may need to reasonably accommodate other employees’ religious beliefs.

Under Title VII, employers must “reasonably accommodate” an employee’s religious beliefs. A colleague may maintain that respecting a pronoun choice will violate their religious beliefs. It is unlikely Title VII would give this employee a complete pass – especially in a jurisdiction where doing so subjects the employer to a hostile environment claim.

However, the employer should not summarily dismiss such concerns. In Brennan v. Deluxe Corp., the Court allowed a religious accommodation claim to proceed where the company seemingly did not take such concerns seriously and discuss a possible accommodation.

Lawyers need to keep a close eye on courts and legislatures as this develops.