Key Takeaways

• Executive Order 14168 applies to federal agencies only and does not override Title VII protections for gender identity and sexual orientation.
• Employers should continue anti-harassment training and policies that address gender identity and sexual orientation in accordance with federal, state, and local laws.
• Religious accommodation requests related to pronoun training should be evaluated individually through an interactive process.
• Employers should avoid accommodations that could create legal risk, undermine anti-harassment obligations, or contribute to a hostile work environment.

A New Era

Q: We have an employee who asked us to remove the pronoun section from our anti-harassment training as part of a religious accommodation request. Should we proceed?

A: In January 2025, President Trump signed Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It mandated a strict binary definition of “sex” as male or female based on a person’s biological sex assigned at birth. The catch is that this only applies to federal government agencies.

The U.S. Equal Employment Opportunity Commission (EEOC) later rescinded the Biden-era 2024 Enforcement Guidance on Harassment in the Workplace to align with Executive Order 14168. Breaking precedent, there wasn’t a public notice-and-comment period before this decision was announced. The 2024 Enforcement Guidance on Harassment in the Workplace provided information on how federal anti- discrimination laws apply to workplace harassment. While it never had the force of law, it helped interpret the law and explain how it’s enforced.

However, both employers and citizens have taken a broader interpretation, imagining that gender protections no longer apply and do not need to be addressed in workplace anti-harassment policies and training.

The Anti-Harassment Fine Print

What many have not accounted for is that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, including gender identity and sexual orientation, is still in effect, and it supersedes Executive Order 14168 and the EEOC’s harassment interpretation rescission. In addition, many states have their own laws that explicitly prohibit workplace discrimination and harassment based on sexual orientation and gender identity.

Making a religious accommodation under Title VII of the Civil Rights Act of 1964 while breaking other parts of that same law or additional federal, state, or local laws, doesn’t hold up in court. The U.S. Supreme Court ruled that Title VII of the Civil Rights Act includes “gender identity” and “sexual orientation” as protected categories within the definition of “sex.” Therefore, harassment and\ discrimination based on gender identity and sexual orientation are unlawful sex discrimination. Such practices may expose employers to additional litigation and lawsuits.

The Bottom Line

Employers’ federal and state legal obligations for anti-harassment and gender protections have not changed. Best practice is to address each religious accommodations case individually, as there may be variables unique to each situation that require further evaluation.

What To Do

You should continue to provide anti-harassment training and policies to all employees that address gender identity and sexual orientation in accordance with applicable federal and state laws.

• Maintain robust anti-discrimination policies and practices. Even the Trump administration has reminded employers that Title VII prohibits employment discrimination based on protected characteristics, including race, color, national origin, sex, and religion. The EEOC has explained that the law protects against such discrimination “no matter which employees are harmed,” and noted that Title VII’s protections “apply equally to all racial, ethnic, and national origin groups, as well as both sexes.”
• Review state and local rules. Stay up to date on applicable laws at the state, city, and municipal levels to ensure compliance with any restrictions or obligations regarding LGBTQ+ individuals that may apply to your business.
• Foster a positive work environment. You can take this opportunity to re-examine your organizational culture and ensure you are providing a safe and professional working environment for everyone in your workplace.
• Stay consistent with anti-harassment obligations. Even if you accommodate this employee, you should still:
  • Train employees on respectful communication.
  • Prohibit misgendering or harassment since they can contribute to a hostile work environment.
  • Maintain clear reporting and enforcement processes.
• Document your reasoning. Keep records of:
  • Employees’ accommodation requests
  • The interactive process
  • The alternatives considered
  • Reasons why the final accommodation was or wasn’t feasible
• Consider including these statements in employee materials:
  • “[Company Name] expects employees to be conscientious and respectful. This includes abiding by the pronouns that people wish to be called. Calling a transgender person by their prior-to-transition name is called “dead-naming.” Intentionally dead-naming or intentionally using the wrong pronoun may be considered forms of harassment.”
  • “Avoid stereotyping individuals based on their gender, gender identity, gender expression, or sexual orientation, including assumptions about their abilities or inabilities as an employee.”
  • “Per federal law, protected classes include race, color, national origin, religion, sex, gender identity, gender expression, sexual orientation, pregnancy, age (40 or older), genetic information, military or veteran status, and disabilities or medical conditions.” (and include additional state level protections)

How to Handle a Request for Religious Accommodation

Whenever an employee requests an accommodation, the employer should immediately engage in an interactive process to provide a reasonable accommodation. The goal is to determine whether the requested accommodation is reasonable or presents undue hardship, including the potential to put the employer out of compliance.

The first step of the interactive process is to engage the requesting employee in a dialogue. Seek to better understand the employee’s specific objection and why. Is the objection based on the use of pronouns, being required to complete trainings that include discussion of pronouns and gender identity, or something else? Then consider a narrower accommodation first, such as:

• Allowing the employee to “opt out” of a non-regulatory required training module if the option is available.
• Clarify that there is no requirement for them to share their own pronouns.
• Provide a private viewing of a training versus their active participation in open discussions or group training.

Finally, evaluate the request for Undue Hardship (i.e., irreparable financial or other harm to the business), which may expose your organization to increased legal risk and associated costs. Before offering any accommodation, you may also want to consult with an attorney to review your training programs and evaluate:

• Would the accommodation undermine the training program’s overall effectiveness or legal obligations?
• Would denying the request and requiring the employee to attend the training without certain modifications infringe upon their religious rights?
• Would the accommodation increase the risk of claims of discriminatory treatment?
• Would the accommodation create a situation inconsistent with workplace standards?
• Would the accommodation violate state human rights protections for gender and identity equity?

The best practice is to address each religious accommodations case individually, as there may be variables unique to each situation that require further evaluation.

KPA’s Commitment to Complete Compliance

KPA provides workplace compliance solutions to help our clients identify, remedy, and prevent workplace compliance problems across the entire enterprise. Our commitment to this mission means that we aim to have our compliance solutions be just that, full compliance solutions. We pride ourselves on being dependable experts with a depth of experience in the industries we serve. To that end, our compliance solutions are aimed at covering critical risk areas and ensuring that the latest regulatory framework is incorporated into our solutions. Our current compliance solutions strive to adhere to the regulatory and statutory framework that are specific to your workplace. Modifications or changes that seek to stray from the statutory or regulatory compliance framework on which our materials are based impede our ability to continue to provide workplace compliance solutions that identify, remedy, and prevent workplace compliance problems.