In a July 28, 2023 ruling, the Seventh Circuit has signaled that Institutions of Higher Education (IHEs) seeking to enforce pronoun policies can expect to face increased scrutiny. Specifically, the Seventh Circuit vacated its prior decision that dismissed a teacher's religious discrimination lawsuit in which he claimed that he was not reasonably accommodated and forced to resign for refusing to use transgender students' preferred pronouns. The unanimous three-judge panel remanded the case to the trial court for reconsideration in light of a recent Supreme Court decision that heightened the standard applied to employers who attempt to claim that providing a reasonable accommodation for an employee's sincerely held religious belief poses an undue hardship.
By contrast, the U.S. Department of Education has continued to convey its intent to strengthen protections afforded to LGBTQ+ students by holding IHEs accountable for failing to address alleged harassment, including through the repeated use of incorrect pronouns by teachers. Given the potentially conflicting legal obligations IHEs have between respecting their teachers' religious freedoms and supporting LGBTQ+ teachers' and students' rights, IHEs should closely follow legal developments in this evolving area and carefully draft any policies addressing the use of preferred pronouns in the classroom.
Implications of the Seventh Circuit's Decision
John Kluge, a high school teacher, filed suit against his former employer, Brownsburg Community School Corporation (Brownsburg), under Title VII of the Civil Rights Act of 1964 (Title VII) for religious discrimination, failure to accommodate, and retaliation after Brownsburg decided to accept his resignation from employment when he refused to follow guidelines for addressing transgender students by their chosen first names and pronouns. After Mr. Kluge objected to its pronoun policy on religious grounds, Brownsburg initially permitted him to call all students by their last names. However, it subsequently rescinded this accommodation when students complained. Following Mr. Kluge's suit, Brownsburg contended that accommodating his claimed religious beliefs posed an undue hardship because doing so was harmful to students and to the learning environment and put Brownsburg at risk for liability under Title IX of the Education Amendments of 1972 (Title IX).
The District Court for the Southern District of Indiana granted summary judgment in favor of Brownsburg on all of Mr. Kluge's claims, finding, in part, that the undisputed evidence demonstrated that Brownsburg was unable to reasonably accommodate Kluge without imposing an undue hardship on its business of educating all students. On appeal, in an opinion dated April 7, 2023, the Seventh Circuit affirmed the lower court's decision, agreeing that the accommodation harmed students and disrupted the learning environment. However, on July 28, 2023, the Seventh Circuit vacated its decision in light of the Supreme Court's recent opinion in Groff v. DeJoy, in which it held that employers must show a religious accommodation imposes a burden that is "substantial in the overall context of an employer's business" to constitute an undue hardship, rather than a de minimis burden.
The Seventh Circuit remanded the case to the lower court with the instruction that it should apply the "clarified standard" for undue hardship set forth in Groff. Although the lower court has not yet issued a decision on remand, and may ultimately determine that Brownsburg has sufficiently alleged an undue hardship under the heightened standard articulated in Groff, the case demonstrates that IHEs should expect their contentions that any religious accommodation imposes an undue hardship to be met with heightened scrutiny in the future, including in the context of pronoun use policies.
The Status of Title IX Protections
As these developments have unfolded in the courts regarding employees' rights to be free from religious discrimination under Title VII, the Office for Civil Rights within the U.S. Department of Education (OCR) continues to build on prior guidance that sex discrimination under Title IX extends to discrimination based on sexual orientation and gender identity and expression, and that OCR takes violations of such protections seriously.
Specifically, OCR issued proposed rules to codify protections afforded to students based on the protected categories of sexual orientation and gender identity and expression, which are likely to be finalized by October of this year. Additionally, OCR has issued recent findings that school districts violated Title IX by failing to address alleged harassment of transgender students, including that involving the repeated use of improper pronouns by teachers, among other conduct.
Key Takeaways for IHEs
In light of the Seventh Circuit's decision and the new standard applied to allegations of undue hardship in connection with religious accommodation claims articulated under Groff, IHEs may need to revisit their reasonable accommodation policies and reconsider their approach to assessing undue hardship. IHEs should also ensure that any requests received for religious accommodation are evaluated on a case-by-case basis. Similarly, any IHEs considering adopting pronoun policies will need to determine whether certain exemptions need to be included in those policies and the scope of any exemptions proposed. If no such exemptions are written into those policies directly, IHEs should be prepared in the event they receive a request for accommodation, and apply the policies consistently.
Given that this area of the law remains in flux, IHEs should continue to track guidance issued by applicable administrative agencies and be aware of any state and local laws or guidance concerning the use of preferred names and pronouns in the workplace and/or classroom.