Appeal from the Circuit Court of Cook County No. 96 CH 003266 The Honorable Stephen A. Schiller, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
G. Keith Richardson filed a claim with the City of Chicago Commission on Human Relations (Commission) against defendant Chicago Area Council of Boy Scouts of America (CAC) under the Chicago Human Rights Ordinance (the Ordinance). Chicago Municipal Code, section 2-160-010 et seq. (1990). Specifically, Richardson invoked section 2-160-030, alleging employment discrimination in hiring based on sexual orientation. Chicago Municipal Code §2-160-030 (1990). The Commission issued an injunction against CAC and imposed a $100 fine. The injunction enjoined CAC from considering the sexual orientation of applicants for employment. Richardson was also awarded $500 in damages and attorney fees and costs in the amount of $335,748.12.
CAC filed a writ of certiorari in the circuit court of Cook County. The court held that Richardson lacked standing to bring suit based on the Commission's finding that Richardson was not genuinely interested in accepting a position with CAC. Accordingly, the court vacated the Commission's award of damages and attorney fees. However, the court affirmed the injunction and fine by holding that the City of Chicago, independent of Richardson, prevailed in the action and that the Commission had authority to enjoin discriminatory action even though it had not formally initiated a complaint against CAC.
On appeal, CAC argues that the injunction and fine should be vacated because: (1) application of section 2-160-030 violates CAC's first amendment rights of expressive association (U.S. Const., amend. I); (2) Richardson lacked standing to sue for employment discrimination; and (3) CAC's employment policy was exempt from the Ordinance under its express exceptions for religious organizations or bona fide occupational qualification. Richardson cross-appeals the trial court's ruling that he lacked standing as an employment tester.
Richardson filed an employment discrimination complaint with the Commission on May 21, 1992, alleging that CAC discriminated against him based on his sexual orientation. The Commission held an extensive hearing. The record reveals the following. The CAC is chartered by the Boy Scouts of America (Boy Scouts) and agrees to comply with the rules and regulations of the Boy Scouts. The Boy Scouts, in turn, are chartered by Congress:
"[T]o promote, through organization and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts."
According to its mission statement:
"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential. The values we strive to instill are based on those found in the Scout Oath and Law:
On my honor I will do my best To do my duty to God and my country and to obey the Scout Law; To help other people at all times; To keep myself physically strong, mentally awake, and morally straight.
Adult professional and volunteer leaders, as well as youth members, are required to take the Scout oath and follow Scout law.
As a youth, Richardson participated in Boy Scouts and achieved the highest rank of Eagle Scout. He became involved in various scout leadership roles and attained honors. In his early 20s, Richardson acknowledged that he was gay and left Scouting. After college, he worked in restaurants or bars catering to the gay community that featured sexually explicit videos and live sex shows.
Finding himself unemployed in the spring of 1992, Richardson came across an advertisement that sought contact from persons who had been Scouts and were gay. Richardson responded to the advertisement and spoke to a founder of the "Forgotten Scouts" -- a group that seeks to change the Boy Scouts' policy barring employment of homosexuals. A month before Richardson contacted CAC, he attended a meeting with a cofounder of Forgotten Scouts to persuade United Way to stop funding CAC unless CAC changed its policies concerning homosexuality.
On May 1992, Richardson called CAC and asked to speak with CAC's public relations person. He spoke to Susan Teplinsky. He was told by the receptionist that Susan Teplinsky was CAC's spokesperson. Teplinsky prepared a memorandum, dated May 22, 1992, that summarized the conversation. Richardson testified that he did not disagree with the contents of the memorandum. The memorandum stated:
"I received a call this morning from Keith Richardson, leader of the local Forgotten Scouts. Much of our 15 minute conversation focused on whether or not the Chicago Area Council would break with national policy and endorse the inclusion of homosexuals in Scouting. I told him there was no way the CAC would ever break with national policy, based on current corporate culture and informal discussions with our board of directors.
Our discussion was amicable and open. He asked if there was any value in our getting together, and I said I would be happy to request permission to meet with him, but added that I thought the outcome would have no bearing on our decision. In the interest of not wasting each other's time, we agreed not to meet.
Keith explained that in light of the Randall decision in California, the group will try to work new legal maneuvers. To begin, he is on his way to the human rights commission to file a grievance against us for not employing homosexuals."
Regarding the conversation, Richardson testified as follows:
"A. [Richardson:] And then I asked her about employment.
Q. Why don't you describe that aspect of the conversation, tell ...