Both sides have declared victory in a recent Divisional Court case that turned on the ability of faith-based organizations to impose lifestyle and morality restrictions on employees.
Adrian Miedema, a partner at Fraser Milner Casgrain LLP who represented the charitable organization Christian Horizons in the case, says faith-based groups are pleased the ruling lets them continue requiring certain employees to meet behavioural requirements.
“Obviously, it was a case that was of significance to a lot of different groups,” he says. “The general impression that comes out of the decision is one of faith-based organizations saying, ‘We’re really pleased that we can continue to do our good work and serve the public.’”
Meanwhile, Anthony Griffin, an Ontario Human Rights Commission lawyer who argued the case, suggests the commission is happy that the court vindicated the complainant.
“She was in the business of helping dress, feed, bath people and take them to their appointments,” he says. “No amount of analysis was going to say that a particularly religious adherence was a [bona fide qualification] for that job.”
The decision in
Ontario Human Rights Commission v. Christian Horizons followed a January 2001 complaint by Connie Heintz, who resigned from her job as a support worker at a community living facility run by Christian Horizons after revealing she was engaged in a same-sex relationship.
Heintz complained the organization and one of her supervisors had discriminated against her and that she “had been exposed to a poisoned work environment,” according to the May 14 Divisional Court ruling of justices John Jennings, Sidney Lederman, and Katherine Swinton.
The court noted Heintz was a devout Christian who has trained in Christian ministry and counselling and took part in religious activities at Christian Horizons.
Complaints against the supervisor were subsequently withdrawn, and the Human Rights Tribunal of Ontario issued its decision in the matter in April 2008.
It ruled Christian Horizons wasn’t protected by s. 24(1)(a) of the Human Rights Code, which allows organizations serving the interests of a defined group to give preference to “persons similarly identified if the qualification is a reasonable and bona fide qualification” because of the nature of the job.
While it agreed Christian Horizons is a religious organization, the tribunal found it was primarily active in serving people with developmental disabilities rather than evangelical Christians.
It further ruled the organization failed to satisfy the reasonable and bona fide requirement as it didn’t make adequate efforts to determine whether Heintz could perform the job without the restrictions set out in a lifestyle and morality statement prohibiting “homosexual relationships” to which all employees had to adhere.
The tribunal also found the organization had created a poisoned work environment for Heintz after learning she was a lesbian.
It issued several orders, including $8,000 to Heintz for application of the discriminatory employment policy; $10,000 for the poisoned work environment; and $5,000 for infliction of mental anguish.
In addition, it ordered Christian Horizons to discontinue its lifestyle and morality statement as a condition of employment; called for the adoption of anti-discrimination and anti-harassment policies; and forced a review of its employment practices and submission of a report to the tribunal.
However, the Divisional Court disagreed with parts of the tribunal’s ruling.
It found the tribunal had misinterpreted s. 24(1)(a) of the code when it ruled Christian Horizons couldn’t rely on the exemption due to the nature of its operations.
“Christian Horizons is, in fact, primarily engaged in serving the interests of persons identified by their creed, with resultant benefits to individuals with developmental disabilities who live in their group homes and the families of those residents,” the court wrote.
While it upheld the tribunal’s awards of general and specific damages, the court struck down aspects of the public interest remedies imposed.
It altered the order to require the organization to develop a policy and provide training targeting discrimination based on sexual orientation rather than create a broad anti-discrimination and anti-harassment program.
The court also deemed it sufficient for the organization to delete the reference to same-sex relationships in its lifestyle and morality statement.
As well, the court struck down parts of the order that required a review of employee policies in consultation with the commission and approval by the tribunal.
Miedema says the ruling will force many organizations to revisit their hiring policies. “Every organization is going to have to look at each job and say, ‘Based on the nature of the job and the function of the employee, is it a bona fide occupational qualification to impose faith-based hiring requirements on this employee?’
This decision provides organizations some insights into what they need to look at in order to do that analysis.”
For his part, Griffin notes the decision is in line with principles set out by the Supreme Court of Canada in the 1984 case
Caldwell v. Stuart. “You could probably say that in order to be a principal in a Catholic school, you need to be a Catholic,” he says.
“In order to be a guidance counsellor, you probably need to be a Catholic. You can probably say the same thing about a nurse because the Catholics don’t want her handing out condoms.
But for the janitor, he doesn’t need to be Catholic. So I think this case is consistent with prior jurisprudence.”
