The case is Kluge v. Brownsburg Community School Co.  The plaintiff is an evangelical Christian high school orchestra teacher in Indiana who lost his job for refusing to use a transgender student’s preferred pronoun. Kluge objected for religious reasons. According to court pleadings, initially, he worked out an agreement with the school to simply refer to students by their last names. However, after some students objected the school gave Kluge three options: use the pronouns demanded by students, resign, or be fired.  A trial court in Indiana ruled in the school’s favor, finding that permitting the teacher to refuse for religious reasons to observe the pronouns insisted on by students, posed an “undue hardship.” The school had argued that its policy to promote acceptance and safety for all students, outweighed Kluge’s religious objection to using preferred pronouns.  The case was then appealed to the Seventh Circuit Court of Appeals, in Chicago, to determine the scope of religious accommodation under Title VII of the Civil Rights Act.

The Seventh Circuit stayed further ruling on the case pending a much-anticipated decision expected from the Supreme Court in the case of Groff v. U.S. Postal Service.  That case involves a mail carrier opposed to working on Sundays for religious reasons.  The lower courts all backed the Postal Service on the ground that providing a blanket exception to working on Sunday, posed an “undue hardship.” These rulings followed longstanding precedent  requiring very little of employers to deny religious accommodations based on hardship. That precedent, which has existed since the 1970s, favors employers by sometimes allowing mere inconveniences posed by accommodating religious beliefs, to qualify as an “undue hardship.”   The fact that the SCOTUS has agreed to hear Groff’s case has many legal scholars predicting a new, more stringent definition of “undue hardship” that will force employers to provide a broader array of religious accommodations to employees and job applicants.

These predictions may well prove accurate. The ADA, which became law in the early 1990s, has developed a huge body of case law about reasonable accommodations/undue hardships in the context of disabilities. The courts and individuals have grown more accustomed to providing employees with accommodations. These changes coupled with the current conservative make-up of the high Court may well open the door to expanding employer obligations to  accommodate sincerely held religious beliefs similarly to accommodating disabilities. Even if Groff loses his case, Kluge may have a different outcome given the different facts of the two cases. Employers may have an easier time producing objective evidence of undue hardship to excuse an employee from ever working on Sundays, versus proving an undue hardship caused by not insisting employees use an individual’s preferred pronoun or other terminology. The Brownsburg School was able to satisfy the long-existing standard of undue hardship by asserting its policy to promote a safe and supportive environment for students.  Will this justification fly if the SCOTUS creates a more demanding standard? Stay tuned.

Questions? Contact attorney James Sherman in our Minnesota office by email or at (952) 746-1700