Appeals court vacates earlier decision upholding school district’s pronoun policy, sends back to trial court in light of Supreme Court’s recent Title VII ruling

by | Aug 8, 2023

Earlier this year, I posted about the 7th U.S. Circuit Court of Appeal’s 2-1 decision in Kluge v. Brownsburg Community School Corp., rejecting an Indiana high school music teacher’s claim that his dismissal for refusing to use transgender students’ preferred names and pronouns violated his religious liberty rights under Title VII of the Civil Rights Act. The court concluded that the teacher’s practice of calling students by their last names instead “caused emotional harm to students and disruptions to the learning environment,” and was thus an undue hardship on the school district, obviating the need for a religious accommodation under Title VII.

Now, the appeals panel has vacated that decision and remanded it to the trial court for reconsideration in light of the U.S. Supreme Court’s recent unanimous ruling in Groff v. Dejoy. There, the Court clarified that the standard an employer must meet for establishing an “undue hardship” is not the “de minimis cost” test used by courts for many years – including by the 7th Circuit in Kluge – but is instead whether a religious accommodation would “result in substantial increased costs in relation to the conduct of its particular business.” The “de minimis cost” standard required an employer to show only that a requested religious accommodation would impose at least a minimal cost to the business.

Many religious advocates, including BJC, argued in Groff that the de minimis standard was insufficient to protect religious liberty rights as intended by Title VII and urged the Court to replace it.

Raising the standard does not mean that religious employees will always be successful in their request for religious accommodation, but it does align the employer’s burden with the text of Title VII, which allows an employer to refuse such a request only after demonstrating an “undue hardship” on the business. Returning to Kluge, the trial court on remand will likely have to determine whether “emotional harm to students” and “learning disruptions” qualify as “substantial increased costs” in relation to its particular business – namely, providing a free, universal public education.

In its initial ruling, the 7th Circuit emphasized that in analyzing undue hardship, “costs” are not necessarily financial: 

Although with corporate defendants, our cases analyze undue hardship by considering financial costs and business interests, the school’s “business” here is more analogous to that of the Veterans Administration (“V.A.”) in Baz. In that case, the V.A. … expected [chaplains] to serve as a “quiescent, passive listener and cautious counselor,” as part of the hospital’s philosophy of total patient care. Baz instead “saw himself as an active, evangelistic, charismatic preacher,” and acted accordingly. When he refused to change his approach, the hospital terminated his employment. After a bench trial, the district court ruled in favor of the hospital….


Title VII does not require an employer to retain an employee who harms the employer’s mission.

The Supreme Court in Groff also cautioned that the test must be applied in light of the particular business of the employer. Here is an excerpt from that decision:

What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

Once the trial court issues its ruling under the substantial costs standard, it may return to the 7th Circuit on appeal. Stay tuned.

For more on Groff and issues related to religious discrimination in employment, see BJC’s resource page on the case, which includes many helpful links.