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Richardson v. Boy Scouts of America


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     In May 1992, G. Keith Richardson, an adult Scout leader and Eagle Scout, sought a job as a Professional Scouter with the Chicago Area Council of Boy Scouts of America. When he asked Council staff whether BSA would consider a gay man for the position, they told him, "No way is the Boy Scouts of America about to give a job to a homosexual." Keith decided not to apply, believing that to do so would be futile. With the assistance of the ACLU, Keith filed a complaint (Web Page or PDF File) on May 21, 1992 with the Chicago Commission on Human Relations charging that the Council had discriminated against him on the basis of his sexual orientation, in violation of the Chicago Human Rights Ordinance.

     It was not until 1995 that a hearing was finally held on Keith's complaint. On September 19, 1995, the hearing officer for the City of Chicago Commission on Human Relations issued a preliminary decision that the policy of the Chicago Area Council prohibiting the employment of homosexuals in professional scouting positions violates the City's Human Rights Ordinance.
     In a seventy-five-page decision (Web Page or PDF File), Hearing Officer Jeffrey L. Taren rejected BSA's claim to be a religious organization exempt from coverage of the ordinance. Taren also stated that BSA's First Amendment right to expressive association had not been violated because opposition to homosexuality is not an expressive goal of the Chicago Area Council.
     The Hearing Officer rejected all of BSA's defenses, including the proposition that there was actually an expressive goal that the Boy Scouts have against homosexuality. He noted that numerous witnesses were totally unaware of such a policy, that scouting did not deal with sexual orientation at all, and that the policy against homosexuality was unknown to most Boy Scouts or even to many of the local councils for many years.
     Among the evidence cited by the Hearing Officer was the testimony of William McClaughlin, director of personnel administration for the National Council of Boy Scouts of America. When they asked McClaughlin whether someone who said he was proud to lead a gay and lesbian parade and was proud of the achievement of many members of the City's gay and lesbian communities should be associated with Scouting, he replied, "I do not." Those remarks, unbeknownst at the time to Mr. McClaughlin, were made by Mayor Richard M. Daley in 1989. Mayor Daley is on the Board of the Chicago Area Council of the Boy Scouts.

Some other findings from the hearing officer included: 

  • There was no common position on the morality of homosexuality among participants in the BSA. Different religious organizations sponsoring scout units have differing views.
     
  • "The Boy Scouts' discriminatory employment policy is based upon the false myths that professional Scouters who are homosexuals will influence young men to change their sexual orientation and will pose a predatory threat to molest young boys." The hearing officer relied on the testimony of Harvard-educated clinical psychologist, Dr. Brian Welch, who stated that there is broad scientific consensus that sexual orientation is most likely set early in life, prior to age 6. With regard to homosexuals molesting children, Welch testified that predatory sexual behavior and pedophilia are overwhelmingly characteristics of males who are heterosexual and insecure in their own sexual identities as heterosexuals, rather than homosexuals.
     
  • There is nothing associated with the hiring of an openly gay man which would require the BSA to alter anything other than its discriminatory policy. The BSA would still be entitled to require their employees to communicate policy, restrict expression of personal opinions contrary to policy and fully regulate the terms and conditions of each person's employment.

     The Hearing Officer offered a definitive vision of what BSA stands for, and observed that "ideas about the morality and immorality of one's sexual orientation are absent from that vision." Opposition to homosexuality is not an expressive goal of the BSA, but rather "nothing more than a discriminatory hiring policy based upon ignorance and stereotypes of gay citizens."
     As relief, the Hearing Officer recommended that the Commission issue an injunction barring the Council from considering the sexual orientation of applicants for employment, and from publishing on its applications or literature that is distributed in Chicago, any employment criteria which indicate a preference or limitation on the basis of sexual orientation.
     On February 21, 1996, the Chicago Commission on Human Relations entered a ruling (Web Page or PDF File) in favor of G. Keith Richardson. The Commission later ruled that BSA owed $335,748.12 in damages and attorney fees.
     On April 1, 1996, the Chicago Area Council filed suit in the Circuit Court of Cook County seeking judicial review of the Commission's order enjoining the Scouts from discriminating against homosexuals in employment. On November 4, 1996, the Chicago Area Council filed a second petition before Cook County Circuit Judge Stephen A. Schiller seeking judicial review of the Commission's fee award. On November 4, 1996, the Chicago Area Council filed an emergency motion requesting that the court stay enforcement of the Commission's order pending judicial review. The Motion for Stay was argued before Judge Schiller on January 10, 1997.
     On August 12, 1999, Judge Schiller issued his decision which barred the Chicago Area Council from considering the sexual orientation of applicants in employment decisions. In his decision, the Judge stated that for the Council "the mere sexual orientation of an employee . . . is not related to any nondiscriminatory basis for denying opportunities for employment."
     However, in September 1999, the Council won a temporary victory when the Illinois Appellate Court ruled that its anti-homosexual hiring policy could remain intact -- at least until the appellate court issued a decision.

    On May 1, 2001, the Illinois Appellate Court issued a decision (Web page or PDF File), which lifted Judge Schiller's injunction which prohibited the Council from considering sexual orientation when hiring staff. The three-judge panel did say, however, that the Council cannot automatically reject gay applicants for positions that are not high-profile or do not involve policy making. In making its decision, the Appellate Court cited the US Supreme Court decision in Dale, upholding the BSA ban on openly gay youth and adults. But the panel also asked the commission to provide more information about the kind of job Richardson had been inquiring about.
     George Davidson, who represented the Chicago Area Council, said that BSA is pleased with the ruling. Davidson publicly stated that the BSA ban on gays is limited to policy making and public positions and does not include support staff jobs.

     The case is currently on appeal to the Illinois Supreme Court, the ACLU of Illinois is arguing that the US. Supreme Court decision in Boy Scouts of America v. Dale does not allow the Boy Scouts to discriminate in hiring clerical and administrative staff, because these jobs do not have an expressive, role-modeling component.

 

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