Employment & Labor Insider

The Virginia Supreme Court yesterday found in favor of a West Point public school teacher whose employment was terminated because he would not address a transgender student by the student's preferred pronouns.

The student, referred to in the Court's decision as "John Doe," was a transgender male in a high school French class taught by Plaintiff Peter Vlaming. Mr. Vlaming's lawsuit alleged that he allowed Mr. Doe to use a male French name in class. However, because of his religious and philosophical beliefs, Mr. Vlaming did not want to use third-person male pronouns when referring to Mr. Doe. Mr. Vlaming alleged that, instead, he avoided using any pronouns when addressing Mr. Doe or the other students in his class. (According to the allegations in his lawsuit, it does appear that Mr. Vlaming tried to avoid making Mr. Doe feel singled out.)

However, the administrators at the school told Mr. Vlaming that it wasn't enough for him to avoid the use of any pronouns -- rather, he needed to use male pronouns with Mr. Doe or risk losing his job. In a meeting with the school principal, Mr. Vlaming was allegedly told that he had to use male pronouns to refer to Mr. Doe and that he "would be reprimanded for not having done so in the past."

Apparently that same day, according to the lawsuit, Mr. Vlaming's class was doing an exercise involving the use of virtual reality goggles. (Don't ask me.) Another student was giving instructions to Mr. Doe, who appeared to be getting ready to "walk into a wall." Afraid that Mr. Doe was going to run into the wall, Mr. Vlaming told the other student, "Don't let her hit the wall!" (Emphasis is mine.) After class, he apologized to Mr. Doe, but Mr. Doe withdrew from his class.

Shortly after this incident, Mr. Vlaming was issued a final warning for violating the school policy "'prohibiting harassment or retaliation against students and others on the basis of gender identity.'" Despite the final warning, Mr. Vlaming said that his "conscience and religious beliefs" would not allow him to use male pronouns with Mr. Doe. After a public hearing, the school board voted to terminate Mr. Vlaming's employment. According to the Board, Mr. Vlaming's refusal to use male pronouns violated policies prohibiting "discrimination or harassment based on gender identity."

Mr. Vlaming sued the school board and the school administrators, alleging that his termination violated the "free-exercise, free-speech, due-process" provisions of the Virginia State Constitution. He also alleged violation of the Virginia Religious Freedom Restoration Act and breach of contract. A lower court granted a demurrer,* which resulted in the dismissal of most of his lawsuit, and Mr. Vlaming appealed.

*A demurrer or a motion to dismiss is usually granted in the very early stages of litigation. The concept is that, even if the plaintiff's allegations are true, the plaintiff has not stated a claim that the law recognizes, and therefore the case can be thrown out right away. For example, let's say that I sue you because you didn't say hi to me when I passed you in the hallway at work. I can't sue for that. (At least, not yet.) So, before you have to spend a lot of money on lawyers, you ask the court to throw out my lawsuit immediately because I have "failed to state a legal claim." To get my lawsuit thrown out at that very early stage, you have to admit -- if only for the sake of argument -- that you really did not say hi to me in the hallway on the day in question. The court has to make that assumption, as well. If the court rules in your favor, you're done, subject to my right to appeal. 

In yesterday's decision, the majority on the Virginia Supreme Court reversed, meaning that Mr. Vlaming's lawsuit will be allowed to proceed. That doesn't mean he won, or even that what he has alleged in his lawsuit is true, but he will get his day in court.

The pronoun issue and religious accommodation

The Vlaming decision is arguably not that significant for people who don't live in the Commonwealth of Virginia and who are not public sector employees with constitutional rights in the workplace. Also, as the Court noted, the Virginia Constitution has much stronger religious liberty language than does the U.S. Constitution.

However, the decision still has implications for private sector employers. Title VII, as interpreted in Bostock v. Clayton County, now applies to gender identity. The U.S. Equal Employment Opportunity Commission issued proposed guidance in October saying that using the wrong pronouns with a transgender employee could be unlawful harassment. (The EEOC guidance makes an exception when use of the wrong pronoun appears to have been accidental. It doesn't address the non-use of pronouns at all.)

On the other hand, the U.S. Supreme Court, in Groff v. DeJoy, recently set a more demanding standard for employers to follow under Title VII when deciding to grant or deny religious accommodation requests.

This is just, like, my opinion, man, but taking these legal authorities together in this context says to me that employers should be open to accommodating employees whose religious beliefs may conflict with the employer's (and the government's) preferences regarding pronoun use and related issues. I would argue that those requests should be handled like any other request for religious accommodation:

• Ask the employee to provide a written explanation, in his or her own words, of the religious basis for the objection. (A written explanation may not be possible if the employee has literacy issues or is not fluent in English.)
• Determine whether the objection is truly "religious" in nature, as opposed to personal opinion, politics, or the like. If it's not religious, feel free to deny the request.
• If the objection seems to be genuinely religious in nature, ask follow-up questions as needed, and engage in the "interactive process" with the employee. Try to brainstorm about a way to accommodate the employee's beliefs that will not create an undue hardship. Accommodation could include job transfers, no use of pronouns with anybody, changes in work schedules, you name it. Be creative.
• Document what you have done.
• Take it from there.

Again, the above is just my two cents and probably worth that much. But I do think employers should be prepared to address the tension between LGBTQ+ rights and religious rights.