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106 Chapter 3
A church should, to protect the religious ethos of the school, be
permitted to require as a condition of work that teachers, even those not
involved in religious instruction, lead a religiously righteous lifestyle – one
that excludes behaviour that violates the tenets of the church – even if this
requirement effectively blocks certain work opportunities for homosexuals.
139 Does this mean that the Equality Court's ultimate finding in
favour of Strydom ((10) above) was mistaken? No, because although a
school should be permitted to stipulate a lifestyle requirement for teachers,
in view of the seriousness of work-related discrimination it should
expressly be drawn to teachers' attention at the time of their hiring that it
will be part of their job description to act as a role model for Christian
values, and teachers should be required to assent to this requirement,
preferably in the form of a provision to this effect in their work contracts.
In Caldwell, Garrod and Kearley, the teachers concerned all acknowledged
that this requirement had been made clear to them, while in Caldwell and
Kearley the teachers contracted themselves to live in a Christian manner. In
Parks, by contrast, the main reason the Court found in favour of the teacher
was that the lifestyle requirement had not been clearly imposed by the
church in advance, and did not appear in the employment contract.
Basson J found on the evidence that, although Strydom was
‘questioned on his Christian values in relation as [sic] to whether he has a
personal relationship with God’ during his interview for the position of
music teacher, it was not ‘part of his job description that he was to become
a role model for Christianity’. 140 The church might well have thought (it is
not clear from the judgment) that it was an implied term of his contract that
Strydom would conduct himself according to the tenets of the church. But
this is insufficient: It should have been included as an express term.
Assuming that the Court is correct that it was not made clear to Strydom
that it was part of his job description to comport himself in accordance
with the beliefs of the church ((4) above), its finding against the church
((10) above) is correct.
Had the facts of Strydom been slightly different, however – had the
church expressly imposed a requirement on Strydom that he act as a role
model for Christianity at the time that his contract was entered into and
had it been explained what such a requirement entails – then an exemption
permitting the church to discriminate on the grounds of sexual orientation
would have been justified. There is no evidence to suggest that Strydom
139 For a homosexual, such a requirement makes working at such organisations
conditional upon celibacy. Homosexuals could, of course, conform their behaviour to
this stipulation, but the cost of doing so for most will be sufficiently high effectively to
block these work opportunities. Not only is the repression of sexual impulses a denial of
liberty, but it also, as HLA Hart Law, liberty and morality (1962) 21 understood, ‘creates
a special and chronic form of suffering because of the nature of the desires it frustrates,
impulses which affect “the development or balance of the individual's emotional life,
happiness and personality”’.
140 Strydom (n 8 above) paras 19 & 22.