Can an employer mandate that its employees address their colleagues, customers, or students by their preferred names or pronouns? That is the million-dollar question. Or in the case of a Kansas middle school teacher who refused to use a student’s preferred name and pronouns due to her religious beliefs—the $95,000 question. Read below to get up to speed on this recent Kansas case, as well as some tips for employers trying to navigate this hotly contested issue.
Background
Pamela Ricard, a middle school math teacher who had taught in the Geary County School District since 2005, filed suit after being suspended for three days in April 2021 and issued a formal written reprimand for refusing use a student’s preferred name and pronouns.
According to Ricard’s lawsuit, Ricard received notice from the school’s counselor that the student preferred to be called by a name other than the student’s legal first name, and a classmate informed Ricard that the student used “he/him” pronouns. Ricard decided to call the student “Miss” and the student’s last name “to be respectful to the student without compromising . . . Ricard’s own conscience and religious beliefs.”
At the time of her suspension, the District did not have a formal policy regarding addressing students by their preferred names and pronouns. Instead, the District suspended Ricard under its general policies relating to bullying by staff. Shortly after returning from her suspension, the middle school’s principal sent out training documents mandating that teachers refer to students by their preferred names and pronouns and stating that failing to do so would constitute discrimination that could subject the teacher to discipline.
Ricard appealed her suspension to the District’s superintendent and Board of Education. And several times during her appeal, Ricard requested a religious accommodation due to her beliefs as a Christian, arguing that she believes sex is fixed at the moment of conception and that forcing her to use a student’s preferred name or pronouns violates her religious beliefs. Ultimately, the Board of Education voted unanimously to affirm Ricard’s suspension and written reprimand, as well as to deny her request for a religious accommodation. Thereafter, the Board of Education adopted a new District-wide policy mandating the use of students’ preferred names and pronouns and preventing employees from communicating a student’s preferred name and pronouns to the student’s parents unless requested by the student.
As part of her lawsuit, Ricard claimed that the District’s Board of Education, superintendent, and the middle school’s principal retaliated against her for expressing her First Amendment rights, violated her First Amendment rights to free speech and free exercise of religion, violated the unconstitutional conditions doctrine, deprived her of due process and equal protection of the law, and breached their employment contract with her.
The Settlement
On August 31, 2022, Ricard’s lawyers released a statement announcing that the District had agreed to pay Ricard $95,000 for violating her First Amendment rights by suspending and reprimanding her for refusing to use a student’s preferred name and pronouns. The statement also detailed that in May 2022, the court allowed Ricard’s lawsuit to go forward, finding that she was likely to succeed on her First Amendment free exercise of religion claim, and thus granted her motion to prevent the enforcement of the District’s policy preventing employees from communicating a student’s preferred name and pronouns to the student’s parents. Moreover, as part of the settlement, the Defendants agreed to issue a statement that Ricard was in good standing and had no disciplinary actions against her at the time of her retirement in May 2022.
Takeaways
Is it now settled law that public employers cannot mandate the use of an employee’s preferred name and pronouns? No. This case ended in a settlement, not a judgment. But as the Geary County School District recently found out, there are potential First Amendment concerns raised by requiring public employees to use a student’s (or other employee’s) preferred name or pronouns without consideration of that employee’s sincerely held religious beliefs. Public employers should work with counsel to navigate this challenging topic.
As for private employers, keep in mind that the First Amendment typically does not apply. The Supreme Court found in 2020 that Title VII protects employees against discrimination and harassment because of an employee’s gender identity. Conversely, Title VII also requires an employer to provide reasonable accommodations for an employee’s sincerely held religious beliefs so long as the accommodation does not pose an undue hardship on the business. While the law on this issue remains in flux, employers generally do not need to grant a request for a reasonable accommodation that would result in discrimination against another employee. But there may be other accommodation options to consider. In the interim, employers should expect additional litigation related to the use of preferred names and pronouns in the workplace. Employers looking to get ahead of this issue should proactively train their employees on the use of an employee’s preferred name and pronouns in the workplace. And if an employee requests an accommodation relating to pronoun usage, consult with experience legal counsel to work through whether a non-discriminatory reasonable accommodation exists.
