Mike McClory, an attorney who specializes in employment law at Bullard Law in Portland, took time Wednesday to answer some questions raised by St. Mary's decision.
is not associated with the case in any way.
This interview has been edited for length and clarity.
Q: Can Oregon employers legally discriminate against prospective employees based on sexual orientation?
: Generally, no.
: You can require that the person be an adherent to the religious beliefs of your institution.
Let's say we were talking about a non-denominational private high school.
There wouldn't be any "bona fide occupational qualification" or "ministerial exception" that would apply.
Q: But don't gay employees have protection from employment discrimination under Oregon law?
: It is a protected class in Oregon, but that doesn't mean that a religious institution is not entitled to exercise its First Amendment rights.
Q: Would Brown have had any additional legal protection if she
had the job as opposed to an offer?
: I can't think of any.
It would be more awkward to ask a teacher to leave midterm or ask a counselor to leave midterm.
As a general matter, the religious exceptions are going to apply before employment and after employment begins.
Q: Would the legal context be any different if a job candidate is gay vs. planning to marry someone of the same sex?
: The school, the institution, would still have a right to give a preference to members of its own religion and that would be sort of broadly interpreted.
You can be a gay Catholic and quiet about it.
I am not sure how it would come into play if she
wasn't talking about it and the school didn't know about it.
Q: Can religious employers ask an employee or a prospective one about her
: I would be more comfortable with a religious organization asking a prospective employee if he
understood what the principles are that this institution stands for and whether he
can support those principles.