I was fired for paying $575,000 to not use a student’s favorite pronoun
The Virginia School Board will settle a lawsuit with a teacher fired for $575,000 after refusing to use the pronouns that transgender students like.
Straight Arrow News
Jocelyn Boden, 47, managed the Bath & Bodyworks store in West Valley City, Utah for three and a half years.
In March, she hired a transgender man as a retail associate, and during her first shift, Borden said she had mentioned the employee twice as “she” as “she” to protect her and her faith as a member of the Church of Jesus Christ of Latter-day Saints.
After two peers corrected her, Borden told the manager that she would use the employee’s chosen name, but “doesn’t degrade my religious and moral beliefs by calling this biological girl lie to him,” she told USA Today.
Borden has been fired. Her termination notice cited “unwanted behavior directed at an individual based on gender, including sexual orientation, gender identity, gender expression, or transgender status.” She says her ending was religious discrimination.
Borden is at the forefront of growing conflict between religious freedom and transgender and non-binary workplace rights.
Some people say the correct use of pronouns to ensure that someone’s identity is a fundamental issue of respect, while others expect to use pronouns of their chosen gender, while others use it as an infringement of First Amendment protections to religious freedom. Standoffs are only intensifying as a change in the political and legal landscape.
When employees object to using a coworker’s pronoun that doesn’t match the gender assigned at birth for religious reasons, “You have a conflict of rights,” said Jonathan Segal, a partner at Duane Morris’ law firm, who advises businesses on how to comply with discrimination laws.
“Question,” he said, “Who will give it?”
When an employee refuses to use a selected pronoun
According to a discrimination complaint submitted by Boden to the Equal Employment Opportunity Commission, her supervisor “discussed with me about my religious beliefs and refused to provide accommodation.”
Bath & Body Works wears “I Belond” pins on their aprons to employees, but “Bass & Body Works is clearly not tolerant of anyone,” Boden told USA Today.
Bath & Body Works “strives to develop a workplace where all peers are respected and valued” and does not discriminate “in the treatment or management of our peers based on protected status,” the company said.
“We are confident that other details will appear in the future to further clarify this case while respecting the confidentiality of employment.”
In 2020, federal workplace protections were extended to LGBTQ+ employees only when the Supreme Court sided with three employees fired for sexual orientation or gender identity.
The Bostock v. Clayton County decision prompted a wave of claims from religious workers fired for refusing to use identified pronouns by colleagues.
These claims were supported by another Supreme Court decision that expanded protections for religious workers and expanded requirements that employers must meet to respond to their beliefs. In that case, Gerald Groff, an evangelical Christian and former postal worker, allegedly discriminated against for refusing to deliver mail on Sunday.
“Employers must show that the burden of granting accommodation leads to a significant increase in costs associated with the implementation of a particular business,” Judge Samuel Alito wrote to the court.
In light of that ruling, this month the federal court of appeals revived a religious discrimination claim by an Indiana music teacher against his former employer, Brownsburg High School, over the requirement to use the name and pronoun of a transgender student.
Kluge taught at school for four years. In 2017, the district began requiring teachers to use transgender student names and pronouns.
He requested religious accommodation to introduce students by their last name and was approved, but after complaints from several students and teachers, the district canceled the accommodation and Cluj left his teacher position. The district declined to comment on the pending lawsuit.
Legal experts say the courts are still sorting out what constitutes excessive difficulties.
Last year, a federal court ruled that Washington State Counseling and Treatment Centers do not need to face discrimination claims from former Christian employees as accommodations exempt her from its pronunciation use policy put the organization to legal liability.
“The facts and circumstances in each case are important when it comes to determining whether a reasonable accommodation meets Gloaf’s excessively difficult standards,” Segal said.
Stephen Resler, who was fired five years after his job at IKEA in Indiana, says that using his/their pronouns conflicted with his Christian beliefs and instead requested religious accommodation to refer to his colleagues. A day later, the wrestler says he was fired.
“I have received a corrective action form written citing my alleged misunderstanding as the reason for my dismissal,” Wressler said in a complaint filed with the EEOC and the Indiana Civil Rights Commission.
“IKEA is an international company with a large number of stores and thousands of employees, and Mr. Wresler mentioned his colleagues with respect that matches his beliefs,” said his lawyer, Joshua Hirschberger.
In a written statement, IKEA said “we are committed to providing a comprehensive workplace where all of our colleagues can be treated with dignity and respect.”
“As a general rule, we do not comment on legal issues. However, in this example, we feel it is important to make it clear that our decision to terminate a colleague is due to repeated violations of IKEA’s Code of Conduct and related policies regarding respect and comprehensive treatment of all colleagues,” the company said.
“Why trans people feel unsafe at work?”
LGBTQ+ advocates say that the use of pronouns that match a person’s gender identity is a key signal of workplace approval for transgender and non-binary employees facing a high rate of harassment and discrimination on their jobs.
Researchers at the UCLA Law School of Williams Institute estimate that 2.1 million Americans are trans-adult. That gender identity differs from the gender assigned at birth. In 2021, researchers estimated that 1.2 million LGBTQ adults were identified as non-binary. In other words, gender identity and expression lie outside the binary categories of “male” and “female.”
From cosmetic stores in California to restaurants in Michigan to hotels in New York, trans and non-binary employees across the country have filed lawsuits claiming hostile work environments involving repeated use of false pronouns.
Recently, Marz Marcello, a 33-year-old podcast industry veteran, sent the pitch to a podcast offering experts as a guest. The person replied: “I will not be involved any more because you have them/they in your email signature. You are either male or female.”
“This is real. This happens. Quietly. In your inbox. In a ‘Friendly’ or ‘Cool’ industry,” Marcello, who has been openly identified as non-binary for 15 years, wrote on LinkedIn. “Let’s be clear. This is discrimination. This is not an expert. This is why trans people feel unsafe at work.”
After they shared an email on LinkedIn, Marcello and her partner received death threats. “We feel that it’s not safe to see,” they told USA Today. “But I’m proud of who I am and I won’t hide it.”
A Williams Institute survey last year found that 82% of trans employees reported experiencing discrimination and harassment at work at some point in their lives. Six of ten non-binary employees reported experiences of discrimination and harassment.
Brad Sears, the founding executive director of the Williams Institute, said trans and non-binary people are particularly vulnerable and marginalized groups in the workplace. In the research, they share intentionally and persistently referring to the stories of colleagues and clients through false pronouns. One Black non-binary employee in Virginia said her boss regularly called them by dead names. This is the name I used before the migration.
“We often see discrimination as a separate event that occurs on a particular day,” Sears said. “For people with breakdowns in the workplace, this experience can be a nearly daily challenge.”
Is “misunderstanding” illegal?
Since the Trump administration cracked down on diversity, equity and comprehensive policies, some employers, particularly government contractors, have withdrawn from comprehensive policies, while others have become more cautious.
Donald Trump leaned towards anti-trans rhetoric on the campaign trail. The campaign ads attacking Democrats say, “Kamara is for them/they’s Kamara is for you. President Trump is for you.”
In one of his first acts of office, Trump issued an executive order recognising only two genders, male and female, instructing his administration to eradicate “gender ideological extremism” in the federal government and elsewhere.
In line with the president’s agenda, EEOC Chairman Andrea Lucas has rejected rolling back protections for transgender workers, strengthening religious rights in the workplace, withdrawing lawsuits on behalf of transgender workers, removing non-binary gender options from discrimination claims, and rejecting previous guidance.
“Sex is binary (male and female) and is constant,” Lucas said in a January press release. “To use languages like pronouns that acknowledge these truths or flow from these reality is not harassment to repeat it.”
Bostock in 2020, which determined that federal civil rights laws prohibit discrimination against workers based on gender identity, did not address “bathrooms, locker rooms, or any other kind of thing.”
“Whether other policies and practices may or may not be found as illegal discrimination,” Supreme Court Justice Neil Gorsuch wrote, “A question in a future case.”
In 2024, the Biden administration was focused on EEOC guidance, with illegal workplace harassment including “repeated intentional use of names or pronouns that contradict the individual’s known gender identity.”
Although some courts agreed, a federal judge in Texas said in May that the EEOC “expands the scope of “sex” beyond biological binaries,” and “including the inability to define identifying harassment to address the toilet, pronouns and dress preferences of transgender employees,” and that he guided the guidance, saying that
“Anti-trans discrimination remains against the law,” said David Glasgow, executive director of Inclusion and who of Law, the NYU School of Law. “The tricky issue is what constitutes anti-trans discrimination exactly.”
The Jackson Lewis law firm recently told clients it was unclear whether employers could “restrict access to bathrooms and locker rooms based on biological sex, or whether employees should address personal pronouns.
However, even without EEOC guidance, “the courts are calling names or repeatedly intentional misunderstandings may constitute illegal harassment under federal discrimination laws,” the law firm wrote.
“As usual, and as with most issues, employers can require employees to treat everyone, regardless of gender, sexual orientation, gender identity, religious beliefs, or other classification.
