A teacher receives a directive from his school district's superintendent that he has been using the wrong pronouns for a student, and that he is to correct the issue. The teacher protests that doing so would violate his religious beliefs. Later, he's fired by the local school board for refusing to follow the order.
That's a very condensed summary of a real-life lawsuit filed last month in the Circuit Court for the County of King William, Virginia. The teacher, Peter Vlaming, claimed he was fired over his refusal to refer to a transgender male student by "he" and "him."
Vlaming said he instead used the student's name and did not "intentionally" use "she" and "her" to refer to the student, but would not use male pronouns because he "believes both as a matter of human anatomy and religious conviction that sex is biologically fixed in each person and cannot be changed regardless of a person's feelings or desires," according to a court filing.
This particular case concerns public-sector employment and state law claims but it may not be too much of a stretch to imagine how a similar situation could arise in the typical U.S. workplace.
Consider the landscape: nearly one-fifth of U.S. adults in a 2019 Pew Research Center survey said they personally know someone who uses pronouns such as "they" over pronouns such as "he" or "she." A recent report by the Chicago Tribune on inclusive language policies at IBM indicated employers are beginning to encounter issues around pronouns more frequently. And at this year's annual Society for Human Resource Management conference, pronouns were included as part of an early session on LGBTQ awareness and best practices for the workplace.
So could an employer, hypothetically, discipline an employee who does not adhere to a rule that employees must properly address co-workers, pronouns included? Does it matter if the employee cites a sincerely held religious belief?
It's not necessarily a question of ability
In general, employers have a lot of leeway when it comes to workplace policies, including inclusivity guidelines, employment law attorneys told HR Dive. That said, the way in which they phrase those policies is important.
"From the company standpoint, they can make any rules they want as long as it's not discriminatory." Eric B. Meyer, partner at FisherBroyles LLP, told HR Dive in interview, noting that there are differences when looking at disputes between employees and the allegations in Vlaming's suit. "In the private sector, when you walk into a workplace, you lose a lot of those rights," Meyer said.
Meyer said a situation in which an employee has a very specific religious objection to the use of others' pronouns is probably a rare one. "I think for most people, it just wouldn't be an issue," he said, adding that if an employee did have such an objection, that employee might also have qualms about using a co-worker's name instead.
Religious objections don't necessarily trump employers' policies, Jonathan Segal, partner at Duane Morris LLP, told HR Dive in an interview. He gave the example of an employee whose religious belief dictates that women should be subordinate to men. Such beliefs are subject not only to anti-discrimination laws, but also to the organization's culture.
Focus on "respecting" rather than "valuing"
A more helpful way to look at the issue may be to reconsider the wording of any policies employers choose to implement, Segal said. Employers looking to implement a policy about pronoun use may want to opt for language that specifies "respect."
"If someone wants to be referred to as a man, it's respectful to do so," Segal said. “You don't have to value it, but you do have to respect it. If you don't respect it you will have to face consequences." Including "value" may introduce new issues by implying the need for religious agreement, he added.
Segal noted one case he experienced in which an Orthodox Jewish employee would shake hands with men before meetings, but would not shake hands with women in the same manner due to his beliefs. Segal said that the employee reached an accommodation with his employer under which he would shake hands with neither men nor women.
But there are limits to such accommodations, Segal said: "The accommodation can't stigmatize someone." Even choosing to refer to all employees by their names — rather than their pronouns — could pose issues, he noted. "It could send a message that by continually avoiding their [pronouns] you're calling more attention to their gender identity."
On the other hand, employers might want to avoid policies that require employees to disclose their pronouns, Segal said. He recommended that employers keep this disclosure optional, as a mandatory policy can be problematic for employees who are transitioning or who don't otherwise want to participate.
An example policy published by the Transgender Law Center includes similar recommendations: "The intentional or persistent refusal to respect an employee's gender identity (for example, intentionally referring to the employee by a name or pronoun that does not correspond to the employee's gender identity) can constitute harassment and is a violation of this policy. If you are unsure what pronoun a transitioning coworker might prefer, you can politely ask your coworker how they would like to be addressed."
When managers can step in
Employers need to be mindful that these are still relatively new issues, Meyer said. "For most employers who want to maintain a respectful workplace — who don't have strong views one way or another — you want to educate your workforce, you want to understand the rules and enforce them."
Mistakes happen. Segal suggested that managers be quick to correct employees when they do so. For example, if one worker accidentally refers to another with the pronoun "she," the manager need only look at the employee who made the comment and remind them by saying, "he," or whichever pronoun is correct. It's advice that is similar to that which Segal gave on the subject of sexual harassment during a presentation earlier this year.
Incorporating a phrase like "zero tolerance" in this context may not be helpful, Segal said, as this can have a negative connotation. It's another thing entirely if an employee continues to make disparaging comments or repeats the mistake. "The key for any action is to be prompt and proportionate," Segal added.
Ultimately, employers will need to be careful about how they approach the subject of pronouns as it is still a relatively new area in employment law, Meyer said. Transgender discrimination in employment is also the subject of an ongoing U.S. Supreme Court case, and it's unclear how the justices will interpret the protections of the Civil Rights Act of 1964 as they pertain to transgender workers.