Declaratory Ruling on Petition Filed by CHRO 2000

STATE OF CONNECTICUT
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

DECLARATORY RULING ON THE PETITION FILED BY THE
CONNECTICUT COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
Link here for summary of this Declaratory Ruling

I. INTRODUCTION

    On May 11, 2000, the Commission on Human Rights and Opportunities (Commission or CHRO) initiated a petition requesting a declaratory ruling. Under the authority of CONN. GEN. STAT. § 4-176 and CONN. AGENCIES REGS. § 46a-54-122, the Commission seeks a ruling on the Boy Scouts of America’s (BSA) policy of excluding homosexuals from participation. The Commission has been asked to rule on any state antidiscrimination statute or regulation over which it has oversight and/or jurisdiction. The Commission caused a Notice to be published in the August 6, 2000 edition of the Hartford Courant. (Attachment 1) No persons sought to be made a party or intervenor in this declaratory ruling process.

    At its regular meeting held on October 12, 2000, the Commission extended the deadline for the issuance of a declaratory ruling from November 7 to November 9, 2000, pursuant to CONN. GEN. STAT. § 4-176 (i).

    In accordance with CONN. GEN. STAT. § 4-176(e)(1), the Commission issues this declaratory ruling.

II. FACTS PRESENTED

    The Commission’s petition for declaratory ruling grew out of a petition from the State Employees’ Campaign Committee (Committee) requesting a declaratory ruling, dated November 19, 1999.

    In its petition, the Committee provided the following factual background for CHRO to examine:

See Committee’s Petition.

    At its regular meeting on February 10, 2000, pursuant to CONN. GEN. STAT. § 4-176(e), the Commission granted petitions to intervene filed by the following organizations: Connecticut Coalition for Lesbian, Gay, Bisexual and Transgender Civil Rights; Connecticut Civil Liberties Union (CCLU); Connecticut Women’s Education and Legal Fund; and Gay and Lesbian Advocates and Defenders.

    In addition, on April 27, 2000, the Commission conducted a fact-finding public hearing at which it took testimony (both written and oral) and documentary evidence, in the form of exhibits.¹ Further, the Intervenors and the BSA filed position statements; and the United Way, the Committee and the BSA produced numerous documents in response to the Commission’s request for documents. The complete record related to the Committee’s request for declaratory ruling is hereby fully incorporated into the record of this proceeding.

    In its petition for declaratory ruling, the Committee had asked the CHRO to issue a declaratory ruling on two questions:

    At its regular meeting on May 11, 2000, the Commission answered the Committee’s second question in the affirmative. See Declaratory Ruling on the Petition filed by the State Employees’ Campaign Committee dated May 12, 2000.

    The Commission declined to answer the Committee’s first question and instead, at its regular meeting on May 11, 2000, initiated its own request for declaratory ruling to answer that question.

III. PARTIES

    The party to this declaratory proceeding is:

    In addition, due to the subject matter, the following have an interest in this Ruling, although none requested to be made a party or intervenor:

IV. ANALYSIS OF THE ISSUE PRESENTED BY THE COMMISSION’S PETITION FOR DECLARATORY RULING

   An answer to the pending question requires an examination of CONN. GEN. STAT. §§ 46a-81c & d. The first provision concerns discrimination against homosexuals in employment, and the latter concerns discrimination against homosexuals in the provision of public accommodations.

    After the Commission issued its declaratory ruling on the Committee’s request, the United States Supreme Court issued a decision which affects the question presently pending before the Commission. Boy Scouts of America v. Dale, __U.S.__, 120 S.Ct. 2446 (2000) (Dale). In Dale, the Court ruled that the BSA’s exclusion of an openly gay adult volunteer was allowed by the First Amendment’s right of expressive association. The case had been appealed to the Supreme Court because the New Jersey Supreme Court had ruled that the BSA’s policy violated its public accommodation statute’s prohibition of discrimination on the basis of sexual orientation.

    Although the Court’s ruling centered on New Jersey’s public accommodation statute, its analysis is relevant to our discussion regarding the employment of openly gay men.

    The policy of the BSA is to exclude from employment openly gay males or avowed homosexuals. The BSA acknowledges the existence of this policy, and the documentary and testimonial evidence attest to it. Ex. 5, 30, & 34. (By contrast, the Girl Scouts of America has no such restriction. Ex. 18.) See generally BSA’s Position Statement, and exhibits attached thereto.

    The BSA maintains it is entitled to exclude homosexuals from employment based on the implicit exception within CONN. GEN. STAT. § 46a-81c, i.e. in the case of a bona fide occupational qualification or need (BFOQ). "Boy Scouts cannot be required to hire an individual who cannot model those values [of the Scout Oath and Law]." BSA Position Statement, p. 15.

    The BSA argues that it has a legitimate BFOQ to require only heterosexual males to serve as Scout Masters and Leaders. The BSA’s policies assert that homosexuals will not be employed in areas of employment which would "interfere with ... mission of reinforcing the values of the Scout Oath and the Scout Law in young people". Ex. 30.

    The scope of a BFOQ depends upon the reason for the blanket exclusion of a particular group. Connecticut Institute v. CHRO, 176 Conn. 88, 93 (1978). The BSA must show that homosexuals are incapable of performing the tasks required by the job. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 36 (1975).

    From the factual record before us, we are unable to determine whether the BSA actually excludes from employment employees of the BSA who are not in leadership positions. Likewise, we are unable to determine, without further information, whether such an exclusion is protected by the abovementioned BFOQ. Further, from the record before us, it is unclear as to whether the BSA employs the minimum number of employees under Conn. Gen. Stat. § 46a-51(10).

    Thus, we conclude that the BSA’s policy of excluding homosexuals as employees is covered by CONN. GEN. STAT. § 46a-81c. Based on the absence of a full factual record on this issue, however, we are unable to determine conclusively whether the policy actually violates the statute. Instead, such a determination is reserved, to be determined on a case by case basis, based on the specific facts of a particular case. In such an instance, the BSA will be required to satisfy its affirmative burden of proof that its exclusionary policy constitutes a legitimate BFOQ.

    Although Connecticut courts have not yet rendered a decision on this exact question, one case regarding the application of our antidiscrimination law to religious schools is relevant. In CHRO v. Archdiocesan School Office et al., 202 Conn. 601 (1987), the Connecticut Supreme Court held that the CHRO was lawfully entitled to conduct its investigation pursuant to the Fair Employment Practices Act despite the possibility that first amendment issues may arise. The court recognized that "state administrative proceedings involv[e] important state interests, such as the elimination of . . . discrimination" and that "Even religious schools cannot claim to be wholly free from some state regulation." Id. at 607. (internal citations omitted)

    Likewise, we cannot categorically conclude that the BSA’s justification for excluding an openly gay male as an adult leader constitutes a legitimate BFOQ, without further proof.

Quinnipiac Council, BSA, Inc. v. CHRO, 204 Conn. 287, 302 (1987).

    As noted in the previous section, the U.S. Supreme Court ruled that the BSA could not be forced to include an openly gay male as an adult leader despite New Jersey’s law proscribing discrimination against homosexuals in public accommodations. Dale, supra. Connecticut’s statute is similar. Quinnipiac Council at 299.

    Thus, as a result of the Court’s ruling in Dale, we conclude that the application of CONN. GEN. STAT. § 46a-81d to the Boy Scouts, as it specifically relates to the participation of openly gay and/or avowed homosexuals as adult (volunteer) leaders, may not be applied to the BSA without violating its rights of expressive association.