Legal And Ethical Implications Of Refusing To Counsel Homosexual Clients

Reviewed by Christopher H. Rosik, Ph.D.

Case Overview
In this article, the authors (Hermann and Herlihy, 2006) review a March, 2001, decision by the U.S. Court of Appeals for the Fifth Circuit, which held that an employer's statutory obligation to accommodate employees religious beliefs did not include accommodating a counselor's request to be excused from counseling homosexual clients on relationship issues. The authors identify the legal precedents stemming from this decision and address subsequent legal and ethical issues. This article is important reading for religiously-oriented professional counselors who might want to refer, rather than treat, homosexual couples wanting to improve their relationships. Hermann and Herlihy set up the case background as follows:

In the Bruff case, the plaintiff was one of three counselors in the North Mississippi Medical Center Employee Assistance Program, a program established to provide counseling to employees of regional businesses. In 1996, Bruff counseled a client identified in the pleadings as Jane Doe. After several counseling sessions, Jane Doe informed Bruff that she was a lesbian and asked for assistance in improving her relationship with her partner. Bruff refused to counsel Jane Doe on this issue, explaining that homosexual behavior conflicted with her religious beliefs. Bruff offered to counsel Jane Doe on other issues and scheduled another appointment for her. Jane Doe did not return for further counseling and complained to her employer about the counselor's conduct. Jane Doe's employer filed a complaint with Bruff's employer, the North Mississippi Medical Center (p. 414).

According to the authors, Bruff told her employers she refused to counsel the lesbian client on how to improve her homosexual relationship because homosexuality was not consistent with her religious beliefs. Bruff further noted that she would similarly decline to counsel clients on having better sexual relationships if those relationships were outside the bounds of marriage. Bruff's employer attempted to make some initial accommodations, but these were not perceived by Bruff as acceptable. She was then given the option to transfer, resign or reconsider her request. She was turned down for one transfer position, then failed to apply for another. After a 30-day transfer period expired, Bruff was terminated.

Bruff then filed a suit for wrongful termination and a lower court ruling found the Medical Center at fault. However, the case was appealed and the ruling reversed. The reversal was based on several considerations, all which negated Bruff's claims. Hermann and Herlihy reviewed some of the court's more critical findings:

Citing U.S. Supreme Court precedents, the appeals court held that allowing Bruff to refer clients with issues that conflicted with her religious beliefs would result in her two colleagues assuming these responsibilities, thereby assuming a disproportionate workload and creating a discriminatory effect.
Bruff testified she assumed she would be able to refer clients whose issues conflicted with her religious beliefs. However, the court noted she did not mention this during the interview process and that the Medical Center did not contractually limit the scope of issues that could be addressed by its counselors.
Bruff contended that accommodating her religious beliefs in this manner was similar to another counselor who did not like to work with children. The court determined that the other counselor would work with children if other clinicians were not available and noted that the plaintiff was not as flexible with her request for religious accommodation.
The appellate court was also persuaded by the possibility that homosexual employee's might not seek counseling through a program that allowed counselors to refuse to work with clients because of their sexual orientation. It ruled that accommodating Bruff's religious beliefs could harm these clients and prevent them from obtaining proper assistance.

Legal Issues
Hermann and Herlihy next dissect the case in terms of the legal consequences of refusing to counsel homosexual clients due to religious beliefs. They highlighted the most important legal issues derived from this case:

"According to the court, providing counseling only on issues that do not conflict with a counselor's religious beliefs is an inflexible position not protected by law" (p. 416).
"The court noted that a counselor who refuses to counsel a homosexual client on relationship issues may cause emotional harm to the client" (p. 416).
"In effect, if a counselor refused to counsel a homosexual client on relationship issues, the counselor is refusing to counsel homosexual clients. Furthermore, both refusing to counsel homosexual clients and refusing to counsel homosexual clients on relationships issues constitute illegal discrimination" (p. 416).
"In addition, an employer can terminate the employment of a counselor who refuses to counsel clients on issues related to the client's sexual orientation" (p. 416).
"Counselors who engage in this type of discrimination also could incur significant legal liability. A homosexual client could use a counselor's unwillingness to counsel the client on relationship issues as a basis for a malpractice lawsuit against the counselor" (p. 416).

Ethical Issues
Hermann and Herlihy then turn to a consideration of the ethical implications of the case. They address the most critical contention by Bruff, i.e., that she was following ethical standards by referring clients with whom she was not qualified or capable of working. In response to this assertion, the authors declare, "The Bruff case demonstrates the inadequacy of an ethical reasoning process that attempts to extract isolated standards from the [Ethics] Code and then interpret them to support one's viewpoint" (p. 417). They repeatedly reference the Code's mandate to respect cultural diversity issues and not engage in discrimination on the dimensions of this diversity, including sexual orientation. Hermann and Herlihy assert that the Code is grounded on moral principles to which counselors must adhere. They observe that diversity issues are rooted in the principle of justice; thus, counselors have an ethical obligation to actively enhance their knowledge of culturally different clients by being willing to work with them to achieve their goals, including gay and lesbian clients.

The authors then summarize what they believe to be the possible (likely?) ramifications of violating ethics codes in the manner of Bruff. For a licensed counselor, these include having an ethics complaint filed against you with the State Board (with the possible outcomes of license suspension or revocation) and the suspension or expulsion from professional organizations.

Recommendations
Hermann and Herlihy make clear that the preferred solution for the legal and ethical issues raised by the Bruff case is for religious counselors to develop a tolerant and non-judgmental attitude, regardless of one's own values. Short of this, they suggest religious counselors should limit themselves to work settings that are compatible with their values and inform their potential clients of these values. If such a work setting is not possible, then the authors advise counselors to ensure clients receive adequate information about their values as a part of enabling informed consent to treatment.

Commentary
The Bruff decision, at least as Hermann and Herlihy present it, is a sobering piece of case law for any counselor who could foresee referring a homosexual client out of religious convictions. It was evident that Bruff did not help her case on several fronts. In her initial job interview, she did not state her reluctance to work with certain clients due to her religious beliefs. She did not have a mechanism for informed consent that would identify these conflicts early in treatment. Furthermore, she apparently had a second opportunity to pursue a transfer to another position that she failed to pursue.

Nonetheless, several aspects of this case review are disturbing. It is not difficult to envision the precedents of Bruff being used as a wedge in opening up the courts to further lawsuits aimed at religiously-oriented mental health professionals who have referred a homosexual client for moral reasons. Hermann and Herlihy's appraisal of the court's reasoning appear to imply that the safest approach for religious counselors is to not refer a homosexual client under any circumstance or risk legal liability. It would be a potentially intimidating weapon that no doubt would be embraced by some gay and lesbian activists: Find homosexual clients who believe they have been referred due to the counselor's religious beliefs and assist them in filing ethical complaints and/or taking legal action. Counselors working for larger organizations would be a particularly inviting legal target. And should same-sex marriage gain widespread legal recognition, the likelihood of such ethical and legal actions being taken against religious counselors would almost certainly increase dramatically.

Although the article raises a multitude of questions that beg for answers, I will only mention a couple of these here. First, given the court's finding that Bruff's desire to refer homosexual clients would be a hardship for her two colleagues, it would be of interest to know how often such clients had historically presented for treatment at the Medical Center. It is hard to imagine that the number of clients falling into this category would be so great as to burden Bruff's colleagues' caseloads. Second, it would be helpful to know just how far the precedents of Bruff might extend. Some examples that came to my mind are as follows:

Motivated by his religious values, a client presents for counseling seeking to change same sex attractions. The therapist has not disclosed his gay-affirmative stance on sexuality issues.
A conservatively religious couple present for counseling wanting to develop a more satisfying marriage within the highly traditional, "patriarchal" sex role norms of their religious subculture. The therapist has not disclosed she practices from a feminist orientation.
A pregnant, single woman seeks counseling for assistance in relieving her guilt about deciding to terminate the pregnancy. The therapist has not disclosed she is a devout Catholic who affirms the Church's views on abortion.
A gay couple present to counseling wanting assistance in determining the degree of sadomasochistic practices they will incorporate into their sexual relationship. The therapist has not disclosed he is affiliated with a conservative religious tradition.

In all of these instances, the question is, do the same legal and ethical liability that apply to Bruff also apply to these therapists should they decide to refer the client? One wonders if the values derived from a gay-affirmative or feminist orientation would be held to the same standard when clients with conservatively religious belief systems are referred by therapists whose values interfere with their ability to assist such clients. Or are only religiously derived values that influence referrals subject to legal/ethical action and not in practice protected under nondiscrimination guidelines? Moreover, are there any relationship issues presented by a homosexual couple that a religiously conservative therapist could refer out without concern for legal or ethical repercussions? [Note: I e-mailed the first author regarding these questions, but to my knowledge have not received a response].

These questions lead to what I consider to be a key judgment that apparently underlies Hermann and Herlihy's ethical reasoning. While they acknowledge the ethical standard of counselor competence (or lack thereof) can legitimately precipitate a client referral, they conclude that in a situation like one in Bruff, the standard pertaining to diversity is elevated above that of competence. This effectively eliminates the impact of a competency argument by counselors wishing to refer homosexual clients. Hermann and Herlihy base their elevation of diversity over competency on the moral principle of justice. They also allude to the moral principles of beneficence (doing good) and non-malfeasance (doing no harm), claiming these also support their contention. It is not at all clear to me, however, that counselors are doing good or avoiding harm to clients when they engage in a therapy that is aimed to achieve goals with which they may have strong moral objections. At least until such counselors are able to ignore relevant aspects of their belief systems (if even possible), proceeding with therapy would seem to create an unadvisable risk of deterioration in the treatment process that could be avoided by a judicious referral.

Finally, Hermann and Herlihy provide only a couple of recommendations for counselors unable to compromise their religiously based moral values. This suggests to me that their highly preferred outcome is for these counselors to set aside their values and adopt a "tolerant and non-judgmental attitude" (although this could certainly be understood as replacing one set of values with another). Nevertheless, the authors' recommendations should be given serious consideration, especially as regards developing informed consent procedures that can provide some protection from the concerns encountered in Bruff. While Bruff does, in my judgment, appear to place an undue burden on religious counselors who wish to refer--i.e., having to foresee every possible clinical circumstance where they might feel a need to refer, since every referral could be suspected of being values based--at the present time these counselors have no better option that some form of advanced informed consent. Based on the court's reasoning, it may also behoove religiously-oriented counselors to indicate a willingness to work with homosexual clients on relationships issues if a referral cannot be made. Such a stance appears to help limit one's liability and yet in practice there are likely to be few clinical situations of this nature where an acceptable referral source would not be available.

In the end, I suspect that the issues raised in Bruff can not be resolved simply by counselors enhancing aspects of professional practice, however wise this may be in the short term. Rather, it seems probably that the proper balance between therapists' religious liberty and professional mental health practice concerning homosexuality is going to be increasingly determined by litigation and subsequent legislation. It is no fun to be stuck in the middle of a clash of worldviews, but for counselors who want their practice to be informed by the historic values of their faith traditions when working with homosexual clients, the options are limited indeed.

Reference:
Hermann, M. A., & Herlihy, B. R. (2006). Legal and ethical implications of refusing to counsel homosexual clients. Journal of Counseling & Development, 84, 414-418.