Religious Objections Over Pronouns Test High Court’s New Stance

A revived legal dispute over a Christian music teacher’s refusal to use students’ preferred names and pronouns will offer an early test of the US Supreme Court’s new standard for religious accommodations in the workplace.

John Kluge sued Brownsburg Community School Corp. after it rescinded a faith-based accommodation that allowed him to refer to all students exclusively by their last names. He lost his discrimination case under decades-old high court precedent that gave employers more leeway in denying religious requests that pose a minimal hardship on operations.

But the justices in June revamped how courts should analyze religious accommodations, making them more difficult for employers to reject. Now Kluge’s case is heading back to an Indiana federal court, which will reasses his claims under the Supreme Court’s unanimous Groff v. Dejoy decision.

Attorneys, however, say the nation’s top jurists didn’t leave clear guidance on when a religious accommodation will constitute a “substantial” burden on an employer under Groff.

It’s an issue that will become increasingly important to clarify as more courts grapple with religious job requests and pronoun use in school settings and private work sites—one of several clashes between religious rights and LGBT anti-discrimination protections that continue to proliferate.

“We’re in a very politically divisive area right now on this topic and so I think different courts may decide this very differently,” said Patricia Pryor, an attorney with Jackson Lewis P.C. “Eventually we’ll be back at the Supreme Court asking for further clarification.”

Substantial Burden

In Groff, the Supreme Court called for a “fact-bound” inquiry into whether or not a religious accommodation under Title VII of the 1964 Civil Rights Act will create a substantial burden.

These burdens need to be analyzed on a case-by-case basis, said Elizabeth Sepper, a law professor at the University of Texas at Austin.

“The analysis of whether a religious accommodation imposes an undue hardship, which is the language of Title VII, will depend on things like the size of the employer, its enterprise, the kinds of workers it has,” Sepper said.

Brownsburg argued that Kluge’s accommodation of referring to all students by their last name singled out transgender students and made them feel awkward and uncomfortable, thereby disrupting the academic environment.

The US District Court for Southern District of Indiana sided with Brownsburg on Kluge’s claim that it unlawfully failed to accommodate his religious beliefs against using names and pronouns that are inconsistent with a student’s sex recorded at birth. It relied on the standard that the Supreme Court’s set in 1977’s Trans World Airlines v. Hardison, Inc., which defined undue hardship on an employer as anything posing more than a “de minimis,” or minimal, cost.

A divided US Court of Appeals for the Seventh Circuit panel affirmed in April, but last month vacated its decision and remanded the case in light of Groff’s updated religious accommodation test.

The school district will likely argue that the case meets the Groff standard due to the role schools play in creating a safe and comfortable environment for children, said Elizabeth Houghton LaGreca, an attorney with Epstein, Becker & Green P.C.

Proving the Case

The argument that Kluge’s accommodation made students uncomfortable might not withstand First Amendment and religious anti-discrimination protections, said Rory Gray, senior counsel at the Alliance Defending Freedom, a conservative Christian advocacy group.

“You can’t avoid that the school context matters, but the question really is, ‘What’s the basis of the complaint?’” Gray said. “If you’re going to try and close the marketplace of ideas, you run into problems, whether it’s under speech analysis, or discrimination.”

Sepper said the district court can also evaluate how Kluge’s accommodation impacted his coworkers. But Brownsburg must prove any opposition from others was based purely on secular grounds and not because the coworkers objected to his beliefs, she said.

While the case will likely hinge on the employer’s ability to establish substantial burden, Kluge also must prove that his religious beliefs are sincere and that a reasonable accommodation does in fact exist, Richard Foltin, a fellow for religious freedom at the Freedom Forum, said.

Future Impact

Lower courts will have to wrestle with Groff’s new standard for years to come, attorneys said.

“I think that’s why the Seventh Circuit didn’t just decide themselves, they sent it back,” Jackson Lewis’ Pryor said. “I think they want to see a little bit more development of the law at the lower level before they chime in.”

Courts are weighing the issue of preferred pronoun usage and religious accommodations in pending employment cases across the nation. All could be complicated by the Supreme Court’s new precedent.

“We’re in a challenging spot where employers may have made accommodation decisions based on the Hardison standard, and then now, those decisions are going to be assessed potentially under the Groff standard,” Epstein, Becker & Green’s LaGreca said.

Foltin said the scope of Groff will affect the amount of new religious accommodation cases, as courts navigate how to apply the precedent going forward.

“In the short term, there will be cases where people will be more likely to have attorneys telling them, ‘Yes, you have a possibility of prevailing,’” he said. “Over time, what’s going to happen is the courts are going to deal with these open questions as to what the standard means and how it’s applied.”

The case is Kluge v. Brownsburg Cmty. Sch. Corp., 7th Cir., No. 21-2475.

—with assistance from Annelise Gilbert and Patrick Dorrian