States Are Banning Most popular Pronouns at Paintings, however Federal Tips Advertise Inclusion. What Must HR Do?

Before a cheering crowd at a Christian school in Tampa, Florida Gov. Ron DeSantis signed legislation in March that prohibited students and teachers from being required to use pronouns that don’t correspond to someone’s biological sex.

“We’re not doing the ‘pronoun Olympics’ in Florida,” DeSantis said. “It’s not happening here.”

Pronoun use for transgender and nonbinary employees has become a hot-button topic, as nine states have passed legislation in 2023 regarding how pronouns are handled among students and employees in K-12 schools. Among those laws:

• Florida explicitly prohibits teachers and students from discussing their preferred pronouns.
• Teachers in Kentucky can’t be required to use pronouns for students that differ from their sex.
• Indiana requires that parents be notified when their children request to use a different name or want to be called pronouns that don’t match their sex.

The U.S. Equal Employment Opportunity Commission (EEOC) has stated in guidance documents that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” and is a violation of Title VII of the Civil Rights Act of 1964.

However, the federal government has yet to regulate pronoun use in the workplace.

In October 2023, the EEOC released proposed guidance that, if implemented, would require employers to allow transgender employees to use bathrooms that align with their gender identities and would consider the intentional and repeated misgendering of workers as sex-based discrimination.

For HR professionals, balancing state laws with federal guidance can be difficult. But legal experts believe organizations can successfully avoid state-initiated lawsuits while also fostering an inclusive workplace for transgender and nonbinary workers.

The Problem with Bostock

While the U.S. Supreme Court decision in Bostock v. Clayton County, Ga. held that LGBTQ+ employees are protected from discrimination under Title VII, the ruling didn’t address whether misgendering or declining to use someone’s preferred name in the workplace violates federal civil rights law.

“We knew this was coming,” said Mark Kluger, founder of law firm Kluger Healey LLC in Fairfield, N.J. “Ever since Bostock, employment lawyers have anticipated the potential for years of litigation seeking to expand the court’s pronouncement to the practical issues presented by transgender employees in the workplace.”

Although the EEOC’s proposed guidance relies in part on Bostock, the Supreme Court only ruled that it is illegal under Title VII to terminate an employee for being gay or transgender, Kluger noted.

“While [the Bostock] decision expanded the meaning of ‘on the basis of sex,’ ” he explained, “the court offered no guidance on how that determination impacts real-life issues such as whether an employer is obligated to allow a transgender employee the right to use the bathroom associated with the gender with which they identify.”

In July 2022, the federal court in the Eastern District of Tennessee issued a preliminary injunction against the enforcement of the U.S. Department of Education’s (DOE’s) Title IX guidance emanating from the Bostock decision that prohibits employment discrimination based on someone’s sex.

The court argues that the DOE guidance is not regulatory law because it hasn’t gone through the administrative rulemaking process, Kluger explained.

“That too will likely happen with the EEOC guidance,” he said. “So, at least for a time, the new EEOC guidance will not curtail enforcement of state laws that conflict with it.”

In states such as Florida or Texas, the EEOC might pursue cases on behalf of transgender school employees if no injunction is issued, Kluger said. While federal district courts may rule that the EEOC’s interpretation of Bostock is overreaching, those in other states such as California and New York might reach opposite conclusions.

“Ultimately we will end up with conflicting rulings among the circuit courts of appeal, leaving the Supreme Court to have the final word,” Kluger said. “All of this may take years [to conclude].”

Does Federal Law Supersede State Law?

Andrew M. Gordon, an attorney with law firm Hinshaw & Culbertson LLP in Fort Lauderdale, Fla., said employers can find themselves in a tough position when state and federal laws conflict with one another.

In some cases, state legislatures are clashing with the federal government over social issues that impact the workplace, including pronoun use. Gordon said those state legislatures may intentionally pass legislation that conflict with existing federal laws or guidance from federal agencies such as the EEOC. But employers should follow the law that provides the worker the most protection.

“Generally speaking, federal law trumps state law,” Gordon explained. “If you have a state law that provides less protections than the federal law, from a technical standpoint, the federal law governs and should be followed.”

However, according to the EEOC, state and local laws may offer broader protections for workers than federal laws do—particularly if employees work for a smaller employer or if they believe the unfair treatment is due to their age—if they are under 40— or some other reason not covered by federal law.

“In those scenarios, the state law governs and should be followed, Gordon said.

[SHRM article: LGBTQ Inclusion: Using Pronouns at Work]

‘It Is HR’s Role to … ’

As the share of people who know someone who is transgender has risen, so too has the number of lawsuits involving pronoun use in the workplace.

In 2022, a Christian physician assistant sued a Michigan hospital after she was allegedly fired after seeking a religious accommodation that would excuse her from using gender-affirming pronouns or referring patients for transgender surgical procedures and medications.

In another case, a Michigan federal court ruled in February 2023 that Interstate Blood Bank Inc., a Grifols SA subsidiary, must face claims that it unlawfully fired a worker who refused to use a transgender co-worker’s preferred pronouns.

Kluger explained that employers should consult with employment lawyers and adapt their policies to the jurisdictions in which their employees work. For companies with locations in different states, that may mean distinct policies.

For example, if a company has employees in California and Texas and a federal district court in California rules that Bostock means that it is discriminatory to prohibit employees from using the bathroom associated with the gender with which they identify, the employer should have a policy consistent with that ruling—especially if the 9th U.S. Circuit Court of Appeals affirms it.

But if the employees in Texas complain that they are not comfortable with that policy and there is either no similar ruling from a federal district court in Texas or one holding that Bostock does not extend to bathroom use, rejecting the EEOC’s position, the employer can choose to have a different policy in Texas, Kluger explained.

“Since there are currently only nine states with laws implicating bathroom and pronoun use, mostly involving public buildings, most private-sector employers will not yet face the conflict between the new EEOC guidance and state law,” he said.

Ange Alvarez, HR and recruitment manager at Next PR in Colorado Springs, Colo., said companies in states with restrictions on pronouns will have to weigh the risk of liability and potential employee turnover if they are not willing to provide the federal protections.

“Employment policies should, at a minimum, provide the protections of the federal guidance,” she said. “It is HR’s role to provide protective workplace policies, legal ethics and uphold the framework that policies must be compliant with federal regulations.”