By: Tyler DeMers
I. Introduction
Meriwether v. Hartop examined if a public university’s application of its gender-identity policy violated a professor’s 1st Amendment free-speech and free-exercise protections.[1] This case directly concerns a public university professor, and his refusal to refer to a student by her preferred she/her pronouns. Additionally, the inciting incident occurred in a classroom setting in violation of the public university’s nondiscrimination policy requiring all professors to refer to students using the pronouns that reflect a student’s self-asserted gender identity.[2] This case might have direct implications on public employees generally and other protections that exist for queer, transgender, and non-binary employees in workplaces nationwide.
II. Overview of Meriwether v. Hartop
The 6th Circuit reversed the lower court’s decision and determined that when the professor waded into the “Pronoun Debate” he waded into a matter of “intense public concern.”[3] The court found that the professor plausibly alleged that his 1st Amendment rights were violated by the university when he was disciplined for failing to use the preferred pronouns of a student.[4]
To reach its conclusion, the 6th Circuit examined if (1) Meriwether was speaking on a matter of public concern, and (2) if the professor’s interest in doing so was “greater than the university’s interest in ‘promoting the efficiency of the public services it performs through him.’”[5] The 6th Circuit notes that his refusal to use a student’s preferred pronouns constituted speech on a matter of intense public concern, and the university’s action against him detrimentally impacted “[t]he robust tradition of academic freedom in our nation’s post-secondary schools.”[6]
Additionally, the 6th Circuit emphasizes that State actors must “give ‘neutral and respectful consideration’ to a person’s sincerely held religious belief,’ and the Free Exercise Clause forbids even subtle departures from neutrality and covert suppression of certain sincerely held religious beliefs.”[7] Meriwether found that “[The professor] ‘was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”” The 6th Circuit also found that the facts of the case demonstrated that the professor was denied a neutral decision maker to address his sincerely held religious beliefs, permitting the professor to bring his 1st Amendment free-exercise and free-speech claims.[8]
III. Current Case Law and Equal Employment Opportunity Commission (EEOC) Protections
Bostok v. Clayton County found that when Title VII was adopted, Congress employed broad language banning sex discrimination, and Bostok confirmed that these protections also protect sexual orientation and transgender status.[9] However, Bostok explicitly left questions relating to Title VII’s interactions with religious liberty to future cases.[10] Bostok notes further that the Religious Freedom Restoration Act of 1993 prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest, and that this statute may supersede Title VII in appropriate cases.[11]
The Supreme Court has previously held that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[12] However, the 9th Circuit states that Garcetti “does not apply to ‘speech related to scholarship or teaching,’” and such speech is governed by [Pickering].[13] If an employee was not speaking as a citizen on a matter of public concern, a public employee has no 1st Amendment cause of action based on his or her employer’s reaction to the speech.[14] If the employee was speaking as a citizen on a matter of public concern, a 1st Amendment claim could be brought if punished for certain speech.[15] All of this relates to Pickering’s rule that requires “balance[ing] . . . the interests of the employee ‘in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[16] The Court further notes that “[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.[17] The primary concern for public employees is that the interest in efficiency of the public service performed must outweigh the value of the speech and expression of an employee.[18]
The Equal Employment Opportunity Commission (EEOC) addresses Sexual Orientation and Gender Identity (SOGI) discrimination under Title VII.[19] Stemming from Bostok, the EEOC states that Title VII prohibits discrimination on the basis of sex, and this applies to sexual orientation and transgender status.[20] The EEOC provides that “It is unlawful to subject an employee to workplace harassment that creates a hostile work environment based on sexual orientation or gender identity . . . Harassment can also include, for example, offensive or derogatory remarks about a person’s transgender status or gender transition.”[21] Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, the EEOC states that intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment under Title VII[22]. Lastly, the EEOC provides that, “While the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”[23]
The EEOC also outlines protections for religious discrimination. The EEOC enforces this through 42 U.S.C § 2000e-2 (Section 703), covering employees in the private sector, state and local governments, employment agencies, and labor organizations, and 42 U.S.C. § 2000e-16 (Section 717) for employees of the Federal government.[24] 42 U.S.C § 2000e-2 defines “‘religion’ to ‘include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to a ‘religious observance or practice without undue hardship on the conduct of the employer’s business.’”[25] The EEOC defines and protects “religious [observances or practices] as ‘[i]ncluding ‘all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate . . . without undue hardship on the conduct of the employer’s business.’”[26] The EEOC further states that “‘Undue hardship’ under Title VII is not defined in the statute but has been defined by the Supreme Court as ‘more than a de minimis cost’ – a lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act (ADA), which is defined by statute as “significant difficulty or expense.”[27]
IV. Implications of Meriwether v. Hartop
Meriwether v. Hartop serves as a case-study of the ever-evolving balance between 1st Amendment freedoms of speech and expression and the protections provided to employees under Title VII of the Civil Rights Act of 1964. As seen in Meriwether, the 1st Amendment protects sincerely held religious beliefs and speech that is associated with such beliefs. The professor’s sincerely held religious beliefs and disparate treatment of a transgender student created a hostile environment for the student, according to the university’s Title IX office.[28] When it reversed, the 6th Circuit “failed to recognize the significance of the university’s interest in preventing discrimination” and “skewed its analysis in favor of the professor’s interests.”[29] The 6th Circuit, when it reversed, found that the Garcetti exception for academic speech covers all classroom speech related to matters of public concern.[30] After this, it looked to the Connick-Pickering test to examine if the professor was speaking on a “matter of public concern” and if “his interest in doing so greater than the university’s interest in “promoting the efficiency of the public services it performs through” him.[31] The 6th Circuit found that Meriwether, in refusing to use gender-identity-based pronouns due to his sincerely held religious beliefs, implicated “a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes” impacting social and political lives.[32]
The dangers of Meriwether are its implications for queer, non-binary, and transgender employees – not just in academia, but in the workforce generally. Meriwether is, on its face, a case about freedom of speech and expression in a classroom setting. Current EEOC guidelines and the recent Bostok decision grant workplace sex-based protections for sexual orientation and gender identity, including the use of pronouns that align with an individual’s gender identity. However, Meriwether, along with the hundreds of recent state legislature initiatives seeking to restrict LGBTQ+ rights[33] in 2022 alone, may indicate a shift in the balance toward 1st Amendment free speech and expression interests against Title VII protections for employees in the workforce. If EEOC protections for gender identity are brought up on a lower court or make an appeal to the Supreme Court, Meriwether’s analysis may be used as an argument against workplace protections for gender-affirming pronouns for queer, non-binary, and transgender employees based on the free speech and free exercise protections of the offending employee
V. Conclusion
The recent Meriwether decision from the 6th Circuit provides that certain speech, such as refusing to use someone’s preferred pronouns, may be protected under 1st Amendment free-speech and free-expression protections under specific circumstances. Meriwether focused on a classroom setting, when an individual has a sincerely held religious belief that prevents them from using the pronouns that reflect an individual’s gender identity. The protections provided in that case applied in a classroom setting after the professor was denied an accommodation for his religious beliefs and the university’s actions therefore infringed on his Free Speech and Free Exercise protections in his classroom (a space with heightened 1st Amendment Protections). Bostok, Title VII, and EEOC guidelines provide workplace protections for gender-affirming pronouns, and the Meriwether decision was limited to free speech and expression in a classroom setting. However, Meriwether may indicate a shift in the balance between 1st Amendment free speech and expression protections and Title VII protections for queer, non-binary, and transgender employees in the future if Meriwether is considered on appeal beyond its current area of concern or used as guiding caselaw in other courts nationwide.
Tyler (he/him) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Prior to law school, he graduated from the University of Arizona with a Master’s of Public Administration. He has a strong interest in government policy, and how legislation and administrative actions impact diverse communities. Outside of school, you can find him playing board games and trying new restaurants across Phoenix.
[1] Meriwether v. Hartop, 992 F.3d 492, 492 (6th Cir. 2021), https://www.westlaw.com/Document/I0f4644808e6011eb86f0fe514fc262aa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[2] Id. at 500-01.
[3] Id. at 508-09.
[4] Id. at 507-09.
[5] Id. at 508 (employing the test outlined in Pickering v. Board of Education of Township High School District, 391 U.S. 563, 568 (1968) to determine if a public employee’s speech is protected by the 1st Amendment).
[6] Id. at 510.
[7] Id. at 512 (quoting Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1731).
[8] Id.
[9] Bostok v. Clayton County, 140 U.S. 1731, 1754 (2020), https://www.westlaw.com/Document/I576207cbaed911eaa4a6da07b08de5cd/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[10] Id.
[11] Id.
[12] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), https://www.westlaw.com/Document/I9c9379a3ed7811daa223cd6b838f54f9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[13] Demers v. Austin, 746 F.3d 402, 406 (2014) (implying that speech by public employees not related to academic scholarship would still be governed by Garcetti), https://www.westlaw.com/Document/I339a648b891d11e38914df21cb42a557/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[14] Garcetti, 547 U.S. at 418 (referencing Connick, 103 S. Ct. 1684).
[15] Id.
[16] Pickering v. Board of Education of Township High School District, 391 U.S. 563, 568 (1968), https://www.westlaw.com/Document/I179944619c1f11d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[17] Garcetti, 547 U.S. at 418.
[18] Pickering, 391 U.S. at 568.
[19] Equal Employment Opportunity Comm’n, Sexual Orientation and Gender Identity (SOGI) Discrimination (2022). https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.
[20] Id.
[21] Id.
[22] Id.
[23] Id. See also Jameson v U.S. Postal Serv., EEOC Appeal No. 0120133123 (2013) (noting that supervisors and coworkers should use the name and pronoun of the gender that the employee identifies with in employee records and in communications with and about the employee. Intentional misuse of the employee’s new name and pronoun may cause harm to the employee and may constitute sex-based discrimination and/or harassment); See also Federal-Sector EEO Cases Involving Sexual Orientation or Gender Identity (SOGI) Discrimination. Equal Employment Opportunity Comm’n. (2022). Both at https://www.eeoc.gov/federal-sector/federal-sector-eeo-cases-involving-sexual-orientation-or-gender-identity-sogi).
[24] Id.
[25] EEOC v. Abercrombie & Fitch Stores, Inc. 575 U.S. 768, 771-72 (2015), https://www.westlaw.com/Document/Id21c91e8080e11e5a807ad48145ed9f1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0.
[26] Id.
[27] Equal Employment Opportunity Commission. Compliance Manual on Religious Discrimination § 1 (2021) (Quoting 42 U.S.C. § 2000e(j); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)) https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftn5
[28] Meriwether, 992 F.3d at 500-01.
[29] Meriwether v. Hartop, 135 Harv. L. Rev. 2005 (May 6, 2022). https://harvardlawreview.org/2022/05/meriwether-v-hartop/
[30] Meriwether, 992 F.3d at 507.
[31] Id. at 508.
[32] Id.
[33] American Civil Liberties Union. Legislation Affecting LGBTQ Rights Across the Country. Updated October 7, 2022. https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country.
Law Journal for Social Justice 