Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park, Equality Court of South Africa (Transvaal Provincial Division) (27 August 2008)
The complainant brought a case against Nederduitse Gereformeerde Gemeente Moreleta Park (Dutch Reform Church) in Equality Court. The complainant alleged that the Church’s termination of his contract on the basis of sexual orientation violated the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
The Church hired the complainant as a music teacher in one of its religious schools. When the Church discovered that the complainant was engaged to another man, it terminated his contract on the grounds that a homosexual man could not be a positive spiritual role model for students.
Whether the right of the Church to freedom of religion and religious expression permitted a violation of the complainant’s right to non-discrimination in employment.
Constitution of South Africa, Sections 9 (equality) and 15 (freedom of religion).
Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (“discrimination” as a policy or situation that “imposes burdens” or “withholds opportunities” from members of certain protected classes; an entity or person accused of discrimination must show the discrimination was justifiable or fair according to a list of factors enumerated in the Act).
Minister of Education & Another v. Syfrets Trust Ltd NO & Another, Constitutional Court of South Africa, 2006 (equality as fundamental right central to the Constitution).
Minister of Home Affairs and Another v. Fourie and Another, Constitutional Court of South Africa, 2005 (finding unconstitutional marriage laws that limited the right to marry to opposite-sex couples).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).
Prins v. President, Cape Law Society and Others, Constitutional Court of South Africa, 2002 (importance of religious freedom).
Caldwell v. The Catholic Schools of Vancouver Archdiocese and Attorney General of British Colombia, Supreme Court of Canada, 1984 (upholding church’s refusal to rehire teacher after she married a divorced man).
Reasoning of the Court
The complainant argued that the termination of his contract at the Church’s school was discriminatory because the Church only fired him after learning of his sexual orientation and his relationship with another man. He cited the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUD), which listed sexual orientation as a protected class.
The respondent was required to show that the termination was fair. According to section 13(2)(a) of the PEPUD Act, an entity could discriminate against an individual on the “prohibited” grounds of sexual orientation (or on other protected grounds, such as race) if the employer could show that it had a “fair” reason to do so. The Church defended its decision to fire the claimant on grounds of freedom of religious expression, arguing that allowing a man in a homosexual relationship to work at the school would have presented an unacceptable moral example to students which would have prevented the school from teaching its doctrine effectively.
The Court first determined whether discrimination had occurred within the meaning of the PEPUD Act. “Discrimination” was defined as any policy or action that would impose a burden on, or deny opportunities to, an individual because of his or her membership in a protected class. Since the complainant was fired because of his sexual orientation, there was a strong presumption of discrimination. The Act did not apply, however, if the respondent could show that the discrimination was “fair” or otherwise appropriate in the context. The Church argued that discrimination was fair in this case because of the Church’s requirement that religious leaders in its community follow religious norms, including a celibate lifestyle for homosexuals. The Court rejected this argument.
The Court held that, by virtue of the PEPUD Act and Section 9 of the Constitution, South African constitutional law firmly protected equality and granted broad protection to certain minority classes. Previous case law also enshrined the right to freedom from discrimination for people in homosexual relationships. On the other hand, case law also established that religious freedom was a foundational principle of South African constitutional law. In cases concerning the rights of homosexual plaintiffs, the Constitutional Court of South Africa had avoided condemning anti-homosexual religious beliefs. The tension between secular and religious rights had therefore persistently been a point of difficulty when it came to determining claims of individual freedom from discrimination.
The Court preferred to step in to prevent discrimination, rather than reinforce discrimination through inaction. It would not prevent discrimination in the abstract (for example, teachings hostile to homosexual relationships) but would prevent the actualisation of teachings that result in discrimination, provided that judicial intervention would not unduly interfere with the constitutional requirement that spiritual leaders are entitled to live and express their religious doctrine.
The Court considered at what point judicial interference would constitute an excessive burden upon a church’s constitutionally enshrined freedom and refined its criteria for considering the relative weight of rights. High-ranking church officials, and ministers who were directly responsible for the religious education of followers, could be required to adhere to certain lifestyle standards, including refraining from same-sex sexual relationships. If the Church were required to hire influential pastors or ministers in accordance with the PEPUD Act, anti-discrimination laws might inhibit the Church from freely articulating its beliefs. However, in the day-to-day running of an organisation and the hiring of lower-level employees, the PEPUD Act still applied just as it would to an ordinary business. Low-level employees and contract workers of the church did not have spiritual responsibility. Their comparatively minor influence on the Church community or church beliefs meant that the Church’s religious rights could not outweigh the individual’s right to be free of discrimination. A balancing test was required. As an employee’s duty to show spiritual leadership increased, so his rights as an individual to live outside the bounds of the Church’s standards of behaviour diminished.
The complainant’s status as a contractual employee meant that he maintained a right to protection from discrimination based on sexual orientation. In addition, the complainant’s students were adults or older teenagers, and he taught music, rather than religion. It did not seem that the complainant would have any great spiritual influence over his students. He was not even a member of the Church in question and did not participate in Church activities outside his employment. His contact with the Church community was also limited. He was so distanced from the spiritual activities of the Church that the Church’s spiritual teachings could not be held to apply to his partnership outside work.
The Court held that the Church, without justification or reasonable excuse, had discriminated against the complainant by cancelling his contract. It ordered the Church to pay the complainant damages for cost of counsel, emotional suffering, and lost wages, and to issue an apology to him.
Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park, Equality Court of South Africa (full text of judgment, PDF)