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The ministerial exception to anti-discrimination laws should not apply to the job of Food Service Director

Last week, I learned that my once beloved high school alma mater, Fontbonne Academy in Milton MA, is being sued for discrimination.  I read an on-line copy of the complaint filed at the Massachusetts Commission Against Discrimination.  The plaintiff is a legally married gay man with many years of experience in the food service industry.  He applied for the job of Food Service Director at Fontbonne.  The school was impressed at his first interview.  They said he was the leading candidate.  After two more interviews — during which there were no questions about whether he was gay, divorced, or any religion based questions — Fontbonne offered him the job.  He told his current employer and made plans to start the new job.

Fontbonne sent him the usual new employee paperwork. For next of kin, he listed his husband’s name.  No one knows who complained, but shortly thereafter, Fontbonne withdrew the job offer because he is gay.  According to a boilerplate press statement, Fontbonne does not deny the facts. It just says it is a Catholic school.

Not only is this decision a betrayal of the social justice education Fontbonne teaches, it is against the law.  The law allows religious employers to deny jobs to employees who serve a ministerial function.  For example, a school in Seattle fired a gay woman who taught religious studies.  The food service director is not a minister.  The School sends a terrible message when it won’t let a gay person serve food to the students.

Apart from the legal flaw in Fontbonne’s thinking, its silence about its choice is disappointing.  The alma mater song encourages us to be “Women of Courage.”  I am reminded that in the early battle to get politicians and the medical community to acknowledge the epidemic, AIDS activists had a slogan: “Silence = Death.” It was not hyperbole.  Silence remains a poor way to promote social justice.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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