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After a religion teacher in Oakland, California, posted photographs of his San Francisco “marriage” to another man on his personal blog, his employer -- a Catholic high school --did not renew his contract. No reason was given, but a colleague said it was because of his marriage and the photos of it he put on his personal Web site. The teacher argued that teaching a religious class is different than “instilling articles” of belief; besides, a number of his students were not Catholic. Nonetheless, he chose not to pursue an employment discrimination case in court.
Proving employment discrimination based on sexual orientation by a religious institution is difficult. The First Amendment protects freedom of religion, and courts have ruled that religion may be used as a basis for employment where it is a “bona fide occupational qualification reasonably necessary to the normal operation” of a business or enterprise. Other courts have described a “ministerial exception,” allowing churches to discriminate in employment in order to uphold their beliefs.
However, conflicting rulings have muddied the scope of exemption. While it is clear that a Catholic church need not hire Jewish -- or even female -- priests, the law is less definitive regarding teachers at religious institutions. While a church music director would seem to be covered, administrative workers at religious-based charities probably are not. And it is almost certain that doctors, receptionists and cleaning crews at religious-affiliated hospitals do not have to follow a certain faith, because a hospital’s primary business is healthcare, not religion.
Sexual Minority Rights Unclear
The law is particularly ambiguous on the rights of sexual minorities and religious institutions. While no federal legislation protects employees from discrimination based on sexual orientation, approximately 90 jurisdictions -- covering 20 to 25 percent of the US population -- includes sexual orientation in antidiscrimination statutes.
In addition, some religious employers receive government funding, forcing adherence to a welter of discrimination laws (though, at the federal level, not sexual orientation exclusively).
Lambda Legal Defense and Education Fund recently handled the case of a lesbian who had been fired by a children’s home run by a religious group, which received government money. The case was settled out of court.
That often happens, says Greg Nevins, Lambda senior staff attorney. Only a handful of such cases have gone to trial, and decisions are mixed. “Basically, religious employees can discriminate on the basis of religion. Sometimes, discrimination against gay people is masked that way.”
For example, Nevins notes, some religious organizations will not hire people living with a partner in an unmarried relationship. Though that seems to apply equally to heterosexual and homosexual couples, in 49 states same-gender marriage is illegal -- and in Massachusetts, where it is legal, the law is under attack.
Do gay workers at quasi-religious employers, like Christian bookstores, have any rights? “I don’t know,” Nevins admits. “It may depend on who runs it and what exactly is sold there.” He notes it is not legal for the owner of a “normal commercial enterprise” -- one with no religious component, like a plumbing contractor -- to not hire someone based on religious beliefs.
Some fired GLBT (gay/lesbian/bisexual/transgender) employees have filed suit under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on, among other identities, sex. However, too few religious-oriented cases have been decided to be definitive.
Transgender Cases Rare
Michael Silverman, executive director of the Transgender Legal Defense and Education Fund (TLDEF), knows of no court cases involving transgender people and religious organizations. A recent incident, in which a male associate dean at a Michigan evangelical college was fired after wearing makeup and earrings and asking to be called by a female name, is in the hands of the Equal Employment Opportunity Commission.
Most courts have ruled that transgender people are not covered under Title VII’s “sex” clause. One circuit court, however, has said they are. The situation will become increasingly controversial as jurisdictions follow the lead of places like New York City, which explicitly includes “gender expression” in antidiscrimination statutes.
Interestingly, because the Diagnostic and Statistical Manual of Mental Disorders still includes “gender identity” as a mental illness, transgender employees -- even at religious organizations -- can fight termination using state and local disability laws. (The federal Americans with Disabilities Act excludes transgender identity as a protected class.) The TLDEF has not argued any cases like this. “It would be awkward for us as advocates,” Silverman says, while admitting it would also be “very interesting and fascinating.”
