The Volokh Conspiracy
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Seventh Circuit Allows Teacher to Pursue Title VII Claim Against School for Requiring Him to Use Chosen First Names of Transgender Students
This case presents a religious accommodation claim, rather than a free expression claim.
In 2021, in Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit held that a university professor could pursue First Amendment free expression and free exercise challenges to Shawnee State University's policy that required professors to use students' desired pronouns. Eugene blogged on the case, and I participated in an Academic Freedom Alliance webinar discussing it.
This past week, the U.S. Court of Appeals for the Seventh Circuit considered some similar claims in Kluge v. Brownsburg Community School Corp. As with Meriwether, Kluge concerned a teacher's challenge to his school's policy as it relates to how teachers should refer to transgender students, but there are also some significant differences.
First, the claim in Kluge is that the school is violating Title VII by failing to accommodate Kluge's religious beliefs. In Meriwether, by contrast, the claims were largely constitutional.
Second, whereas Meriwether involved pronouns, Kluge involves names. The policy at issue requires teachers to refer to students by their chose first names (as opposed to by their last names). Kluge objects to this policy because he believes referring to a student by a first name that conflicts with their biological sex violates his religious commitments. he was initially granted an accommodation under which he could refer to students by their last names, but the school ultimately decided this accommodation was not reasonable and rescinded it.
Third, Kluge arose in a high school, not a university. This is potentially significant both because academic freedom interests are less pronounced in a high-school setting and because accommodations that might be reasonable in a university setting might not be reasonable in a grade school.
As in Meriwhether, the appeals court is allowing the objecting teacher's case to go forward, here for a jury determination as to whether accommodating Kluge would produce an "undue hardship" on the school.
Judge Brennan wrote the majority opinion, joined by Judge St. Eve. Judge Rovner dissented.
Here is how Judge Brennan summarized the issues and the case:
Brownsburg High School instituted a policy mandating teachers call students by their first names as they appeared in its database. For transgender students who had changed their first names, the database listed their new ones.
John Kluge was a teacher at Brownsburg. He repeatedly objected to the school's name policy on religious grounds. Kluge believed that calling transgender students names that conflicted with their biological sex encouraged their transgender identities—a sin, in his view. So, he requested an accommodation, which the school granted. Kluge was allowed to call students by only their last names—"like a sports coach," he said.
After one year, a handful of students and teachers, as well as one student's parents, complained to Brownsburg about Kluge's practice. The school rescinded the accommodation, giving Kluge the chance to either call all students by their first names or face termination. Confronted with this choice, he resigned. Kluge then sued the school under Title VII for failing to accommodate his religion.
An employer is required to accommodate an employee's religious practices unless doing so would impose an "undue hardship" on its business. 42 U.S.C. § 2000e(j). At issue is whether the impacts caused by Brownsburg's accommodation of Kluge rise to the level of an undue hardship under Groff v. DeJoy, 600 U.S. 447 (2023). Because material factual disputes exist, we reverse the district court's grant of summary
judgment to the school on Kluge's accommodation claim and remand for further proceedings.
And from the body of the opinion:
Brownsburg has not carried its burden to show undisputed facts of a serious disruption to the learning environment. Although two performing arts teachers, whose testimony is not in the record, had spoken to the administration about students "having discussions about the uncomfortableness" in other classes, there is no hint that those discussions interfered with students' education or the teachers' duties. These two teachers also claimed that the accommodation caused "tension" that interfered with "the overall functioning of the performing arts department." But Kluge expressly disputed that "tension" existed within the department. He instead said that he "g[o]t along great" with those same performing arts faculty who purportedly complained, and he "did not witness any … animosity" from them.
We must also keep in mind that Kluge is entitled to all reasonable inferences at this stage. McDaniel, 115 F.4th at 822. It is true that three other teachers—whose testimony is also not in the record—similarly complained to Craig Lee that the accommodation was "harming students," both Sucec and Willis, and "students in general who would potentially be in" Kluge's class. Yet there is no evidence that the three non-performing arts teachers complained to the school's administration, only to Lee. One would expect that if there was a serious disruption to the learning environment, those teachers would elevate concerns to the school administration, rather than complain only to a colleague with no authority to reprimand Kluge or control his actions.
In sum, the record contains material factual disputes about whether the accommodation disrupted Brownsburg's learning environment, precluding summary judgment to the school.
Judge Rovner's dissent begins:
Why won't he just say your name? This was the question Aidyn Sucec's music stand
partner posed to him one day in John Kluge's orchestra class. Sucec felt compelled to answer: it was because he was transgender. R. 22-3 ¶ 13.This exchange epitomizes the problem that confronted Brownsburg. Brownsburg had agreed to let Kluge implement the last-names-only practice as an accommodation to Kluge's professed religious beliefs. From the start, the accommodation as implemented by Kluge was fraught with problems.
Although the last-names-only practice was neutral in the abstract, students quickly figured out that the practice was occasioned by the presence of transgender students in Kluge's classroom. The result was that transgender students felt stigmatized, their allies were frustrated and concerned, other teachers repeatedly fielded questions and concerns about the policy, and parents believed that both their decision-making and their children were not being respected. It is undisputed that complaints from all of these quarters were conveyed to Brownsburg. From the school district's point of view, then, the accommodation was harming transgender students and disrupting the learning environment for them, their fellow students, and for teachers. Given the lack of a dispute as to the concerns that were reported to school and district officials, Brownsburg reasonably concluded that the accommodation was a failure and that allowing it to continue presented the risk of legal liability.
In remanding the case for a trial at which the jury will be invited to reassess de novo the evidence that confronted Brownsburg and to decide for itself how credible the concerns reported to Brownsburg were, the court is setting a perilous precedent for employers. Until today, when confronted with a Title VII employment discrimination claim, we have deferred to an employer's good-faith assessment of how an employee performed in the workplace. Without exception, we have always said that an employer's honest, non-discriminatory assessment of its worker's performance will carry the day, even if it strikes us as wrong-headed. Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer's good-faith reasoning. In
making employment decisions, at least in the religious-accommodation context, employers will now have to consider not only how successfully an employee is performing his job as modified by a religious accommodation, but how a jury
might second-guess its assessment in litigation years down the line. This is an untenable restraint on employers' decisionmaking.Today's decision also burdens employers in a second important respect. Brownsburg successfully argued below that Kluge's accommodation proved inconsistent with its mission, which is to provide a supportive learning environment for all of its students. Although the majority accepts this mission for present purposes, it also suggests that evidence of an employer's mission must be limited to policies that are formally
documented and adopted prior to any litigation. I think many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court.Employers may also be surprised to learn that when an employee's religious accommodation has reportedly caused emotional distress or psychological injuries to one or more coworkers or customers, the employer cannot be confident that its undisputed, good-faith understanding of that harm will be given any deference; rather, it may be left to jurors to judge for themselves whether the injuries are objectively serious enough to be recognized in the Groff analysis. Groff v DeJoy, 600 U.S. 447 (2023).
