Labor & Employment Law Daily Religious accommodation and retaliation claims of teacher who objected to transgender policy survive dismissal
Tuesday, January 14, 2020

Religious accommodation and retaliation claims of teacher who objected to transgender policy survive dismissal

By Ronald Miller, J.D.

On a motion to dismiss, the court could not conclude that the employer had no duty to accommodate the teacher’s allegations that calling transgender students by their preferred names violated his religious beliefs.

A high school teacher may pursue failure to accommodate and retaliation claims under Title VII against a school district alleging that the district discriminated against him and forced him to resign because his sincerely held religious beliefs prevented him from following a school policy that required him to address transgender students by their preferred named and pronouns. However, a federal district court in Indiana found other claims, including a litany of First Amendment claims, a hostile work environment claim under Title VII, Due Process and Equal Protection claims, claims of intentional infliction of emotional distress and fraud, and state constitutional claims, failed to survive the motion (Kluge v. Brownsburg Community School Corporation, January 8, 2020, Magnus-Stinson, J.).

The employee became a music and orchestra teacher with the school district in 2014, and throughout his employment he received positive evaluations. He identified as an evangelical Christian and has practiced his faith since before he was employed by the school district. The teacher believed that God created mankind as either male or female, that this gender is fixed from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

Transgender policy. During the summer of 2017, the high school began to allow transgender students and students experiencing gender dysphoria to use the restroom of their choice and to change their names and genders in the school database. High school employees, including the teacher, were instructed to refer to students using the names and genders listed in the database.

In July 2017, the teacher informed the school district’s superintendent that the requirement that he use the students’ names as listed in the database conflicted with his religious beliefs against affirming gender dysphoria. The superintendent responded that the teacher could either “use the transgender names, say he was forced to resign from BCSC, or be terminated without pay.” Because the teacher refused to use the names listed in the database, the superintendent initiated an administrative leave of absence, and the teacher was given three days to decide if he would comply.

Religious accommodation—plus suspension. The teacher requested “an accommodation for his religious beliefs,” and proposed the solution of “addressing all students by their last names only, similar to a sports coach.” The school district agreed to allow the teacher to address all students by their last names only and assigned someone to distribute gender-specific uniforms to his students so he would not have to do so. Despite this agreement, the school district retroactively administered a two-day suspension.

In mid-December 2017, the teacher met with the superintendent and was advised that the last-names-only arrangement had created “tension.” He was told he should resign by the end of the school year and later submitted a “conditional resignation” effective May 28, 2018. On May 25, the teacher attempted to rescind his resignation. Nevertheless, his resignation was processed.

Teacher’s claims. The teacher filed suit asserting 13 claims for relief, including failure to accommodate, HWE and retaliation claims under Title VII; First Amendment retaliation; content and viewpoint discrimination under the First Amendment; compelled speech under the First Amendment; violation of his right to the free exercise of religion; violation of right to be free from unconstitutional conditions; Due Process and Equal Protection claims under the Fourteenth Amendment; violations of the rights of conscience and free exercise of religion under the Indiana Constitution; IIED, and fraud under Indiana common law. In response, the employer moved to dismiss.

Matter of public concern. When public employees make statements pursuant to their official duties, the teachers are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. In assessing whether speech addresses a matter of public concern, courts look to the “content, form, and context” of a given statement.

In this instance, the teacher failed to state any claim under the First Amendment because, as a matter of law, the speech at issue was not constitutionally protected. The teacher was not asserting that he was disciplined for criticizing or opposing the policy, but that he was disciplined for refusing to follow it in his classroom by refusing to call students by the first names listed in the database. The way in which he addresses students is part of his official duties as a teacher.

Further, the court concluded that the teacher’s choice as to how to address a given student did not involve a matter of public concern. He was conveying a message concerning gender identity when he refused to call students by their names as listed in the database or referred to students by last name only. But the act of referring to a particular student by a particular name did not contribute to the broader public debate on transgender issues. Accordingly, the court dismissed with prejudice the teacher’s claims for retaliation, content and viewpoint discrimination, and compelled speech under the First Amendment.

Failure to accommodate. On the other hand, the court denied the motion as to the failure to accommodate and retaliation claims under Title VII. Title VII requires employers to accommodate employees’ sincerely-held religious beliefs where they conflict with rules of employment and where providing an accommodation would not result in undue hardship.

On motion to dismiss, the court was bound to accept all of the teacher’s factual allegations as true and merely determine whether he had stated a plausible claim. The teacher alleged that, insofar as transgender students are concerned, using names as listed in the school database violated his religious belief that “encouraging students to present themselves as the opposite sex by calling them an opposite-sex first name is sinful.” Thus, he alleged a conflict between school policy and his sincerely held religious beliefs.

Further, the court accepted as true the allegations that the school district refused to accommodate the teacher’s belief where doing so would not result in undue hardship and that this conflict was the basis of the employer’s demand for his resignation. Accordingly, the employer’s motion to dismiss the teacher’s failure to accommodate claim was denied.

Retaliation. The teacher alleged that the employer retaliated against him for engaging in protected conduct by: (1) agreeing to the last-names-only accommodation and then withdrawing the accommodation without demonstrating that it caused undue hardship; and (2) telling him he could either “use the transgender names and pronouns, resign, or be terminated.” On the pleadings, the court could not conclude that the employer had no duty to accommodate the teacher’s religious beliefs; therefore, it could not conclude that his retaliation claim failed on that basis.

Accepting the teacher’s allegations as true, it was plausible that school officials, over time, became less inclined to tolerate the teacher’s religious beliefs and used the idea of students’ complaints as a pretext to withdraw the last-names-only arrangement, refused to provide another accommodation to which he was entitled, and forced him to resign. Thus, the court concluded that the teacher’s allegations were sufficient to state a claim for retaliation under Title VII.

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