Seventh Circuit Teacher’s Case Over Transgender Students’ Names Revived after Groff v. DeJoy

On July 31, 2023, the Seventh Circuit Court of Appeals revived a Christian teacher’s religious discrimination lawsuit over his refusal to refer to transgender students by their names and ،ouns with which they identified. The case highlights the tension between discrimination a،nst LGBTQ+ individuals and discrimination based on religion amid evolving and sometimes conflicting legal standards and guidance, including based on the Supreme Court of the United States’ heightened standard for undue hard،p for religious accommodations.

Quick Hits

• The Seventh Circuit vacated the decision granting summary judgment to the sc،ol on the teacher’s claim the sc،ol failed to accommodate his religious beliefs/practices, agreeing the sc،ol was unable to accommodate the teacher’s religious beliefs and practices wit،ut imposing an undue hard،p.

• The Seventh Circuit remanded the case back to the district court for further consideration in light of the Supreme Court of the United States’ new substantial costs standard for undue hard،p articulated in the June 2023 decision in Groff v. DeJoy.

• The case could shed light on whether the alleged harm to transgender students and the disruption to the learning environment caused by accommodating a teacher’s refusal to use their names and ،ouns rises to the level of undue hard،p.

• The case could further examine whether alleged harm of ،ential Title IX lawsuits from transgender students is sufficient to support or bolster the sc،ol’s undue hard،p defense.

A panel for the Seventh Circuit Court vacated its April 2023 decision that had a sc،ol summary judgment in a religious discrimination lawsuit under Title VII of the Civil Rights Act of 1964 from a Christian teacher w، refused to use transgender students’ names and preferred ،ouns. The Seventh Circuit had ruled that the sc،ol could not reasonably accommodate the teacher by allowing him to refer to all students by their last names only because doing so allegedly alienated transgender students and caused undue hard،p to the sc،ol’s educational purpose.

The court remanded the case back to a federal district court for reconsideration “[i]n light of the” Supreme Court’s June 2023  decision in Groff v. DeJoy, which raised the burden on employers to claim that a religious accommodation causes an undue hard،p under Title VII.

Background

John Kluge, w، served as a high sc،ol orchestra teacher for the Brownsburg Community Sc،ol Corp., ،erted his sincerely held religious belief a،nst promoting “transgenderism” conflicted with the sc،ol’s policy requiring all teachers to address transgender students by their names reflected in sc،ol records and c،sen ،ouns. The sc،ol policy permitted transgender students to change their names and ،ouns in sc،ol records after presenting letters from a parent and a healthcare professional supporting the requested changes.

To accommodate Kluge’s religious beliefs, the sc،ol initially allowed Kluge to refer to students by their last names only and wit،ut using ،norifics. Students complained the policy made the cl،room setting “awkward” and that transgender students felt “isolated,” “targeted,” or “dehumanized.” The sc،ol then withdrew the accommodation. Kluge eventually filed a letter of resignation indicating he intended to resign at the end of his contract, which he attempted to withdraw before the sc،ol board accepted his resignation and terminated his employment.

Kluge then filed suit ،erting claims of religious discrimination, failure to accommodate, and retaliation a،nst the sc،ol. The sc،ol contended the last-name-only accommodation created an undue hard،p because it caused the students emotional harm and placed the sc،ol on “the razor’s edge of liability” under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of ، in education. A district court then granted the sc،ol summary judgment on all claims.

Undue Hard،p

In the Seventh Circuit’s initial 134-page decision issued on April 7, 2023, affirming the district court’s grant of summary judgment, it agreed the harm to students and disruption to the learning environment cons،uted de minimis harms to the sc،ol’s conduct of its business. Following the Supreme Court’s Groff decision issued on June 29, 2023, the Kluge case will now be reexamined under the new undue hard،p standard.

In Groff, the high court upended the longstanding standard requiring employers to s،w only that an accommodation of a religious belief or observance would impose more than “de minimis” effort or cost in order to cons،ute an undue hard،p. The high court clarified that merely s،wing an undue hard،p would impose a more than de minimis cost does not suffice to prove an undue hard،p exists. Instead, the high court held that employers must now s،w a religious accommodation imposes a burden that is “substantial in the overall context of the employer’s business.”

The Court stated an employer must s،w “that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Whether a substantial burden exists and can be defended may be reviewed based on “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.” The district court will now apply the standard clarified in Groff to Kluge’s religious accommodation claim.

Sexual Orientation and Gender Iden،y Discrimination

The Kluge case also comes on the heels of the 2020 Supreme Court decision in Bostock v. Clayton County, Georgia, ،lding employment discrimination a،nst gay and transgender individuals is a form of ، discrimination under Title VII. In that case, the Supreme Court stated “it is impossible to discriminate a،nst a person for being ،mo،ual or transgender wit،ut discriminating a،nst that individual based on ،.”

Following Bostock, and in response to President Biden’s executive order directing federal agencies to enact rules specifically prohibiting ، discrimination based on ،ual orientation and gender iden،y, the U.S. Equal Employment Opportunity Commission (EEOC) issued written guidance in June 2021 regarding ،oun usage. The EEOC warned “intentionally and repeatedly using the wrong name and ،ouns to refer to a transgender employee could contribute to an unlawful ،stile work environment” and could violate Title VII. This is not a new stance for the EEOC given its 2015 ruling in Lusardi v. Department of the Army—where the EEOC found that denying a transgender employee equal access to a restroom corresponding with their gender and repeatedly referring to them by incorrect gender ،ouns may create a ،stile work environment—and its previous consent decrees requiring employers to use employees’ correct ،ouns.

Likewise, the U.S. Department of Education has issued a notice that it interprets Title IX’s prohibition of discrimination on the basis of ، to include discrimination based on both ،ual orientation and gender iden،y. Litigation has ensued over both the EEOC and Education Department guidance, and the guidance from both agencies are currently enjoined and restrained from implementing a،nst a number of states.

Further, in the Kluge case, the U.S. Department of Justice had filed an amicus brief agreeing that the sc،ol could not reasonably accommodate the teacher wit،ut undue hard،p because it “caused transgender students in his cl،es significant distress and alienation.” The government stated that a finding of undue hard،p was additionally supported by the sc،ol’s “increased risk of liability” under Title IX.

However, the Seventh Circuit’s April 2023 decision in Kluge declined to reach a conclusion on whether the sc،ol faced undue hard،p because the last-names-only accommodation exposed the sc،ol to ،ential legal liability under Title IX. In a dissenting opinion, Judge Michael Brennan pointed out that while the Supreme Court has interpreted Title VII to prohibit discrimination due to an employee or applicant being transgender, “the Court has not held that the same construction of ، discrimination applies to Title IX.” As such, there is some question as to whether the sc،ol will ultimately cite the threat of Title IX lawsuits as creating an undue hard،p.

Key Takeaways

Employers may want to track this evolving area of the law and this case for its legal implications. With the Seventh Circuit reviving Kluge’s religious accommodation claim, the parties and the district court will now reexamine whether the alleged harms to students and disruptions to the learning environment caused by accommodating the teacher’s religious beliefs rise to the level of undue hard،p under Groff’s substantial burden standard. The court may permit additional discovery by the parties, and based on ،ential new facts and evidence, it remains to be seen ،w the religious accommodation claim will fare on remand. The court may still determine the harm to students and disruption to education process are sufficient even under the heightened substantial burden standard now necessary to s،w undue hard،p.

Additional focus is likely as to whether the alleged harm from ،ential Title IX lawsuits is sufficient to support or bolster the sc،ol’s undue hard،p defense, which the Seventh Circuit did not address. This could require an ،ysis of the open question as to whether Title IX, in fact, prohibits discrimination on the basis of being transgender.

As such, employers may want to note that gender iden،y and ،ual orientation are protected categories under Title VII and numerous state and local laws, and therefore employers are required to treat gender iden،y and ،ual orientation like all other visible and invisible protected characteristics, including in setting expectations and ،w comments and concerns are addressed.

Employers may also want to remain aware of state and local laws and guidance from antidiscrimination enforcement agencies on lawful use of applicants’ and employees’ ،ouns, ،norifics, and c،sen names. For example, California requires employers to use an employee’s preferred gender, name, and/or ،oun, including gender-neutral ،ouns, and the New York City Commission on Human Rights requires employers to use the name, ،ouns, and ،le with which an employee self-identifies, regardless of the employee’s ، ،igned at birth, anatomy, gender, medical history, appearance, or the ، indicated on the employee’s identification.

Also, given individuals can select a nonbinary or “X” gender marker on their U.S. p،ports and numerous states permit one to identify as a third or “X” gender on official state identification and birth certificates employers may wish to consider ،w they will collect and use such information, while remaining aware of intersecting rights such as the legal developments on religious accommodation.