09 August 2022

(Sometimes) Irreconcilable Differences: LGBTQ+ Rights and Religious Accommodations

When Employers Are Stuck in the Middle

More and more employers are finding themselves in the difficult position of dealing with objections from religious employees to DEI trainings or policies, or requests from coworkers to use preferred pronouns. Unfortunately, the law provides employers with limited guidance in this increasingly fraught area. What are employers to do when they find themselves caught in the middle? Here are seven tips to help.

1. Acknowledge that this is difficult.

First, take a deep breath and acknowledge these are very difficult topics—personally and morally complex, often politically charged, and a muddle legally. As Chai Feldblum (the first openly LGBTQ+ Commissioner of the EEOC) said in a 2019 speech on religious liberty, pluralism, and LGBTQ+ rights: “This is hard work.”

In the debate concerning pronouns and gender identity, for example, one side may view the issue as simply about affirming a person’s identity, while the other side may believe they are being asked to affirm a false and destructive ideology in a way that conflicts with their religious beliefs.

Such disagreements often run deep and may be irreconcilable. Indeed, according to the premises of each side, both perspectives are legitimate. Furthermore, both perspectives find support under the law. Two summers ago the Supreme Court ruled that federal civil rights law includes protections against discrimination on the basis of sexual orientation or gender identity. In addition, civil rights law requires employers to accommodate employees with religious objections to workplace policies unless the accommodation would pose an undue hardship on the employer, and there are additional statutory and First Amendment protections for religiously-motivated conduct or expression in the public sector.

Zooming out, there is also the constitutional principle that individuals should generally not be coerced into saying things that violate their conscience, most famously articulated by the Supreme Court in the 1943 case of West Virginia v. Barnette:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

2. Seek a solution based on good faith and mutual respect of all sides.

In the same 2019 speech mentioned above, former EEOC Commissioner Feldblum reminded us that “grappling with these questions” requires “a true generosity of spirit.” This is often particularly challenging when these conflicts arise in the workplace, but the point is no less true. Acknowledging the legitimate feelings and perspectives on all sides gives employers the best chance of both finding a reasonable accommodation and avoiding litigation, while also building a stronger, more inclusive workplace culture.

As the EEOC’s manual on religious discrimination says, even when the “religious interests” of an employee conflicts with her employer, “a resolution satisfactory to all may come from good faith on the part of the employer and employee through mutual efforts to reach a reasonable accommodation.”

3. Recognize that the law currently provides only limited guidance.

Unfortunately, the law does not currently provide clear answers to these difficult conflicts. In the same decision in which the Supreme Court clarified that sexual orientation and gender identity are protected by Title VII of the Civil Rights Act, the Court also made clear that it’s “deeply concerned with preserving the promise of the free exercise of religion”—a “guarantee,” it said, that “lies at the heart of our pluralistic society”—and pointedly declined to speculate how “[legal] doctrines protecting religious liberty interact with Title VII,” leaving such questions for “future cases.”

On the pronoun question in particular, the Biden administration has taken the position that it poses an undue hardship for a school district to accommodate a high school teacher who objected to the use of gender-affirming pronouns on religious grounds by allowing the teacher to use only last names when addressing students. In that case, the school district was successful in the district court but an appellate decision is expected soon in the Seventh Circuit.

Conversely, last year a unanimous panel of the Sixth Circuit ruled that a university violated a professor’s First Amendment free-speech and free-exercise rights when it disciplined him for using a student’s last name rather than preferred pronouns, and this spring the case settled with the university paying the professor $400,000 in damages and attorneys’ fees.

4. Sincere religious beliefs are protected, but bigotry is not.

It is important to understand which types of religious claims or conduct receive protection under the law and which do not. Actual animus against LGBTQ+ individuals receives no protection under the law, whether or not it’s religiously motivated. In other words, if an employee refuses to use a coworker’s preferred pronoun because the employee dislikes transgender individuals or is angered by the transgender movement, or an employee seeks to ostracize a transgender colleague by taunting him with non-affirming pronouns, such animus is not a sincere religious belief, or form of religious expression, protected by the law. As a result, if an employee objecting to a DEI- or LGBTQ+ -related policy or a request from an LGBTQ+ individual shows no interest in seeking a compromise or respecting the other individuals or interests involved, that may be an indication she is not acting in good faith or on the basis of sincere religious beliefs. It is the very rare religion that does not preach love of neighbor.

5. Be careful about claiming undue hardship.

The Supreme Court has defined “undue hardship” for purposes of the reasonable accommodation analysis under Title VII as imposing “more than a de minimis cost” on the operation of the employer’s business. These determinations must be made by considering the particular facts of each case. That said, undue hardship “means something greater than hardship,” should not be hypothetical, and requires more than proof that some coworkers complained or are offended by another’s conduct. On the other hand, interference with coworkers’ abilities to perform their duties, or harm to customer relationships (or patients in the healthcare context), generally constitutes undue hardship.

6. Harassment is a bright line.

If an employee’s assertion of his or her religious rights crosses the line into harassment of a colleague, courts are very unlikely to find such conduct deserving of protection. Employers should immediately investigate if they receive reports that an employee’s conduct in regards to an LGBTQ+ individual is unwelcome, and immediately intervene if their investigation determines that the employee’s behavior was objectively abusive or insulting—even if the employee claims the conduct is religiously motivated. But by itself, refusing to use a coworker’s desired pronouns on the basis of a sincere religious objection is not likely to be deemed harassment.

Similarly, a federal judge recently rebuffed an employer’s arguments that accommodating its employees’ religious objections would have been a form of anti- LGBTQ+ harassment. In a religious discrimination case brought by the EEOC that is scheduled for trial in December, the judge held that a grocery store allowing two employees to decline to display a corporate symbol on their uniform that they believed endorsed homosexuality would not by itself constitute harassment or create a hostile work environment, even though the judge agreed that granting such accommodations would have led to disruption in the workplace. On the contrary, the judge found that allowing the employees to forgo wearing the symbol “is not the stuff of harassment or hostile work environment claims.”

7. Consider reaching out to counsel.

As we emphasized in our first point above, this is a very difficult issue on multiple levels. If you’re worried about potential missteps, good counsel can certainly help.

Please don’t hesitate to contact the author or another employment and labor attorney at Miller Johnson if you are faced with a workplace conflict involving similar issues.

Contact the author Brett Swearingen.