With Bostock extending Title VII protection for LGBTQ+ employees, companies might consider reviewing their gender pronoun policies and guidance. Although many companies have been aware of gender pronouns, for others, it’s a completely new concept.
What Are Gender Pronouns?
First and foremost, a pronoun is any word used as a substitute for a noun or noun phrase. 1
In the context of this article, the use of pronouns refers to which gender pronouns employees would like used when referring to them. She/her/hers and he/him/his are the most popular sets of pronouns. However, employees might use gender-neutral pronouns such as they/them/theirs, ey/em/eirs, among others.
Gender-neutral pronouns have a history in the English language. The singular “they,” for example, was used as early as 1386 in Geoffrey Chaucer’s The Canterbury Tales. Shakespeare also used the singular “they” in Hamlet back in 1599. And, about two hundred years later in 1813, Jane Austin used the same in her classic, Pride and Prejudice. Even one of the lesser common gender-neutral pronouns, ey/em/es was first used sometime in the 19th Century. 2
3 Recent Gender Pronoun Lawsuits Worth Reviewing
With the recent increase in the use of gender-neutral pronouns or the correct pronouns for transgender individuals, notable employers like Goldman Sachs and IBM have issued guidance and policies to help ensure inclusive environments for all employees. However, this relatively uncharted territory has proven somewhat litigious. Below are three recent pronoun-based lawsuits worth reviewing before implementing new gender pronoun guidance or policies:
1. Meriwether v. Shawnee State University
Case Summary
In this case, a professor employed at Shawnee State University sued the university after it disciplined him for refusing to refer to a transgender student by their pronouns. In his lawsuit, professor Nicholas Meriwether alleged that Shawnee State had violated his First Amendment rights to freedom of speech and free exercise of religion.
On February 12, 2020 the court dismissed Meriwether’s case. The court sided with the magistrate judge’s recommendation, which among other findings, determined that because Meriwether’s speech was made pursuant to his duties as a government employee and not as a citizen, it was not protected speech.3
Meriwether appealed. For now, the case remains on the docket.
It’s Important Because…
This case is highly relevant to public sector employers and government contractors. It’s important because it’s not over! Employers concerned with First Amendment rights, particularly those in the Fifth Circuit, should keep a close eye on this appeal.
2. Brennan v. Deluxe Corp.
Case Summary
Unlike the Meriwether case, Brennan v. Deluxe Corp. addresses religious protections in the private sector. In this case, employee Frederick Brennan alleged Deluxe disciplined and later terminated him after he requested a religious accommodation. Specifically, he requested that Deluxe excuse him from a required ethics compliance course that violated his religious beliefs.
The ethics compliance course at issue included multiple-choice questions that employees had to answer correctly to move forward. One such question addressed the use of pronouns for a person who was transitioning. According to Brennan, his “Christian religious beliefs did not allow him to choose the answers required by Defendant’s Ethics Compliance course.”4
Deluxe denied Brennan’s request for an accommodation, reduced his pay, and then terminated him. Brennan sued, alleging discrimination based on religion (disparate treatment) and failure to accommodate Brennan’s religious belief. Deluxe then filed a motion to dismiss Brennan’s claims.
The circuit court dismissed Brennan’s disparate treatment claim but allowed his religious accommodation claim to move forward. With respect to the accommodation claim, the court noted that the case was not at the appropriate stage to consider Deluxe’s undue burden defense.
It’s Important Because…
This case is important for two reasons. First, it addresses a key issue in Title VII religious discrimination: accommodations. Notably, the defendant in this case, Deluxe, cited EEOC guidance indicating that the accommodation Brennan requested would be considered an undue burden. Accordingly, employers should absolutely discuss accommodations with their legal counsel, particularly with respect to required employee training.
Second, it just so happens that this is not Deluxe’s first time at the rodeo. The gender pronoun litigation rodeo, that is. Last time however, the EEOC sued Deluxe for creating a hostile work environment for a transgender employee. In that case, Deluxe employees used harmful epithets and intentionally referred to a transgender employee by incorrect pronouns. Deluxe ultimately settled the case. As a part of the settlement, Deluxe agreed to implement employee training explaining that sex discrimination includes discrimination based on sex-stereotypes, gender identity, and transgender status.5 You could imagine Deluxe’s surprise when an employee hit them with a lawsuit involving the very training that precipitated from the EEOC settlement.
3. Lyles v. Nike Inc.
Case Summary
Last year, Jazz Lyles, a transgender contractor for Nike, filed a damning civil lawsuit against Nike and one of its subcontractors. According to Lyles, Nike failed to intervene or investigate on multiple occasions when Nike employees repeatedly used the wrong pronouns when addressing Lyles, thereby creating a hostile work environment. At least one of those employees told Lyles that they could not use Lyles’ preferred pronouns due to their religious beliefs.
According to an Oregon Judicial Department, Lyles’ case remains open.6
It’s Important Because…
Like the Meriwether case, this lawsuit is not over. It is worth keeping an eye on as more details emerge surrounding Nike’s actions or inaction. Further, it will be interesting to see whether discussions of religious discrimination make their way into the case.
Conclusion
The ruling in Bostock is reigniting the conversation surrounding pronouns at work because Bostock will inevitably have a significant impact on workplace sex discrimination policies. It will also most likely inform much of the ongoing and future litigation addressing gender pronouns in the workplace. Accordingly, it’s important to stay on top of cases like the ones above, especially those still actively being litigated. Above all, employers should consult their attorneys before implementing policies, guidance, or training.
[1] “pronoun.” Merriam-Webster.com. 2020. https://www.merriam-webster.com/dictionary/pronoun.
[2] “A Brief History of Gender Neutral Pronouns.” BBC News. BBC, September 22, 2019. https://www.bbc.com/news/newsbeat-49754930.
[3] See Garcetti v. Ceballos, 547 U.S. 410 (2006).
[4] Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 499 (D. Md. 2019).
[5] EEOC v. Deluxe Financial Services Corp., (D. Minn., Civ. No. 0:15-cv-02646-ADM-SER, filed June 4, 2015, settled January 20, 2016).
[6] We conducted an online records search via the Oregon Judicial Department’s online web portal on November 1, 2020.
