What is an employer to do when faced with conflicting legal obligations to different employees?
Title VII: Pronoun vs Religion
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in the workplace. Gender identity is a protected class under Title VII. The Equal Employment Opportunity Commission (EEOC) issued guidance back in 2021, which included a landing page, technical assistance document, FAQs on sex discrimination, and a handy fact sheet about sexual orientation and gender identity workplace rights. This means that an employee cannot be discriminated against based on their gender identity, including their preferred pronouns. Failing to use an employee's preferred pronouns can create a hostile work environment and lead to discrimination and harassment.
Title VII also requires employers to reasonably accommodate an employee's religious beliefs. This can include allowing an employee to wear religious clothing, take time off for religious observances, or refrain from certain activities that conflict with their beliefs. This law comes into conflict when an employer tries accommodating an employee's religious beliefs while also respecting another employee's preferred gender pronouns.
So why is this being brought up now? A new case, Haskins v. Bio Blood Components, in Western District of Michigan, was allowed to set a trial date this past February in reference to these two sections of Title VII. Now, I know I usually do not bring up cases that have not even gone to trial, but I feel this topic is vital to bring up as this situation should be discussed amongst your leaders on how to address and resolve BEFORE it is ever brought up as an issue.
To give a hypothetical situation: You have employee A who was hired as a male, but has recently decided to identify as female. She make the request to leadership that her preferred pronouns (She/Her) are utilized in the workplace by all. Once this is addressed, employee B states that they have the right of free speech and could not have their speech compelled to tell a lie because they are Christian and will not live a lie.
One employee has the right to have their preferred pronouns utilized in the workplace and another is entitled to a accommodation based on their religious beliefs. An employer must accommodate an employee unless doing so would create an undue hardship on the operation of the employer's business.
As HR, what are you to do in this scenario? What is the right course of action? Well, those answers will not be the same for each situation, nor each employer. The fact is, this case in particular will not even assist with that answer as the crux of the case is that employee B asked their supervisor for a reasonable accommodation based on religion, which the supervisor refused and terminated them without discussion. Yeah, I think I just felt all of you cringe through the world wide web on that one.
In this case, where one employee objected to using another employee's preferred pronouns due to their religious beliefs, accommodating that employee's request could create a hostile work environment for the other employee. It could also be seen as discriminatory towards the other employee based on their gender identity, which is a protected class under Title VII. Does that mean employee A wins over employee B?
Employers Must Engage In The Interactive Process When An Employee Requests An Accommodation. While accommodating an employee's religious beliefs cannot come at the expense of another employee's rights or create a hostile work environment, employers must engage in the interactive process when an employee requests an accommodation. Start this discussion now with your leadership and legal representative to discover where you can be flexible and what aligns with your company’s mission, vision, and values.
Commentary by: Raylea Stelmach
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