The latest such case might be that of Ken Bencomo, who had taught at the all-girls St. Lucy's Priory High School in Glendora, Calif., for 17 years. He was fired two weeks after marrying his partner, reports the San Bernardino County Sun, purportedly because a notice appeared in a local paper, the Inland Valley Daily Bulletin. But depending on the specific details of the event and Bencomo's history at the school, there may be questions of whether the institution was within its rights to end his employment.
Los Angeles CBS television affiliate KCAL reports that the marriage between Bencomo and his partner Christopher Persky was prominent because they were one of the first same-sex couples to be married in San Bernardino, after the historic Supreme Court ruling. (San Bernardino is about 40 miles east of Glendora.) Some say that Bencomo's sexual orientation was no secret from the school.
Abigail O'Brien, a former student of the school, said in an interview with the San Bernardino County Sun newspaper that Bencomo's being gay was "something that students and faculty knew" long before the wedding. Bencomo's attorney, Patrick McGarrigle, also claimed in an interview with the Sun that the school cannot claim to be surprised.
Joseph Stark, an attorney for the school, told the Sun that a lawyer claiming to represent Bencomo contacted the school on Sunday but that Stark had not yet seen the allegations.
"St. Lucy's has known of Mr. Bencomo's orientation for years," McGarrigle said. "Administrators had been introduced to his partner in the past, so the suggestion that Ken's orientation is a surprise or that his lifestyle somehow violated doctrine is at odds with the school's knowledge and what seemed to be acceptance of him until most recently."
According to the San Bernardino Sun, the school issued a written statement that its educational activities will continue "in the tradition of the Catholic faith."
An online petition asking the school to return Bencomo to his duties has gained close to 10,000 signatures. More than 1,300 people have joined a Facebook discussion group, according to the Sun, although some people felt that the school's decisions was the right one:
St. Lucy's officials later issued a written statement, saying the school plans to continue educating students "As a Benedictine school, St. Lucy's is a community for those who wish to express Christian values in education and develop person and academic excellence," the statement said.
According to some California labor attorneys contacted by AOL Jobs, the focus on how long the school knew of Bencomo's orientation could become a critical question in any wrongful termination lawsuit.
James Wellman, a former board and executive committee member for the school, said he thought Bencomo might still be teaching at St. Lucy's had he not appeared in the newspaper.
"We should not forget that Ken has been teaching at a Catholic high school. Anyone who believes that St. Lucy's operates in a totally independent fashion from the Catholic Church is gravely mistaken," he said.
According to Mark Spring, a partner with the California labor law firm Carothers DiSante & Freudenberger, which represents employers, what the school knew and when could potentially undermine its position. Under California law, workplace discrimination based on sexual orientation is illegal, but there are exemptions for religious organizations, particularly when employees are in a "ministerial" role, which can include teachers. "Religious schools and organizations are offered substantial deference for making decisions in keeping with their teachings," Spring says.
However, if Bencomo could prove that the school had known of his orientation long before the marriage, then it might suggest that the St. Lucy's "doesn't have a problem with teachers who are gay, even though it's against the church's teaching." In that case, the school would have fired the teacher for exercising his civil rights, which would be illegal. Spring says that proving the school had actual knowledge and not mere suspicion would be difficult.
Leslie Levy, a partner at labor law firm Levy Vinick Burrell Hyams, which represents employees, adds that there are other complicating factors. "Religious corporations are sometimes formed as non-profit public benefit corporations," Levy says. "It means they are required to not discriminate." So the legal structure of the school could play a role.
There's also the question of whether teaching English, as Bencomo did, would be considered by a court to be a ministerial role. If not, California religious exemptions might not apply.
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