Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Pluralism and Challenges in Employment


Julia K. Stronks

10-11-2013


By Julia K. Stronks

October 11, 2013

A story broke recently that challenges those of us interested in the employment rights of faith-based institutions. A longtime theology professor at Azusa Pacific University in California told administrators that she was transgender and would be undergoing gender reassignment surgery.  Heather Ann Clements is now known as H. Adam Ackley.

It isn’t clear what Azusa Pacific will do. Initial reports indicated that Ackley was asked to leave, but he is still teaching. Moreover, faculty members at Azusa Pacific are saying that the administration is handling this matter with tremendous grace and sensitivity, which is a wonderful thing. Ackley has consulted an attorney, and it remains to be seen if he will be allowed to finish the last two years of a five-year contract. One of the important questions will be whether the state of being transgender violates any university policy or the employment contract signed by Ackley. Azusa Pacific has a sexuality statement that focuses primarily on sexual behavior. Ackley has said that he leads a “chaste life,” so it is not immediately apparent that any policy has been broken.

The state of California prohibits employers from discriminating against employees on the basis of sexual identity, but the statute specifically exempts faith-based institutions from compliance.  So, at first glance it would seem that a university in this position may do what it wants to.  However, last year the US Supreme Court issued a decision that complicates things.

In 2012 the Supreme Court handed down Hosanna-Tabor v E.E.O.C.  In this case, a Lutheran school attached to a church fired a teacher. The teacher said she was fired for her narcolepsy, which would be a protected condition under a federal disability law, but the school said it fired the teacher for other reasons. The Supreme Court declined to examine the reasons for the employment termination saying that employment discrimination lawsuits were not allowed under a First Amendment religious freedom “ministerial exemption.”  Religious groups have the right to determine for themselves who their preachers and, in some cases, teachers will be. The unanimous court said that religious groups have the right to self-determination in this way.

However, when Chief Justice Roberts wrote the opinion, he said that the case was limited to employment discrimination lawsuits. Other sorts of lawsuits, like contracts, torts, or criminal suits involving things like sexual harassment or sexual assault would be considered at another date as these cases rose through the legal system. This means that faith-based institutions might be in a somewhat dicey legal position if they try to release employees when the institutions have not specifically spelled out what a violation of a contract would look like. 

Hosanna-Tabor was a good decision for those of us who believe that faith-based institutions should have room to shape themselves according to their deepest beliefs. But both the Supreme Court case and the Azusa Pacific situation present a challenge and an opportunity. Do we want to focus only on the rights of faith-based institutions, or as a matter of principled pluralism, do we also believe in responsibilities?  Our challenge is to determine what sorts of responsibilities we believe faith-based institutions have to their employees and even to their customers or clients.  Our opportunity is to broaden our conversation about pluralism. 

The coming years are going to bring dozens, if not hundreds, of lower court cases that involve conflict between an institution shaped by people of faith and the civil rights of the LGBTQ community. I believe principled pluralism calls us to talk further about how both government and faith-based institutions can meet their responsibilities to protect this group even while they support the faith-based calling of schools, businesses, and families.

My hope is that Azusa Pacific will find that H. Adam Ackley, a committed Christian transgender person, has not violated his contract. But even if this happens, we still should talk about the responsibilities of faith-based institutions that choose to fire gay employees or refuse to serve gay customers. Principled pluralism has a great deal to offer a conversation about the rights of faith-based groups, and responsibilities are part of the discussion as well.

- Julia K. Stronks has practiced law and has a Ph.D. in political science. She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington.



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