Faith groups' hiring rights under the microscope

  • December 4, 2009
Arguments will begin Dec. 15 in Ontario Divisional Court in the appeal of the decision by the Ontario Human Rights Tribunal against Christian Horizons . The tribunal ruled against the social service agency in April, 2008, stating that it cannot insist on faith requirements in its hiring, nor require employees to sign agreements attesting to such requirements.

The decision raised significant concerns about the freedom of all religious organizations to require employees to pledge to adhere to tenets of a religious faith. Christian Horizons operates more than 180 residential homes for people with developmental disabilities and provides support and services to about 1,400 people. It is funded almost entirely by the province, receiving about $75 million each year.

Prior to the OHRT decision, all staff were required to sign its Doctrinal and Lifestyle Morality Statement, which forbade a number of activities, including homosexual conduct. The organization’s management had always regarded its work as a ministry arising from evangelical Christian convictions.

The complaint to the human rights commission was made by former employee Christina Heintz, who signed the employee agreement when she joined the organization in 1995, but later entered into a lesbian relationship that became known to her supervisor. Her employment was terminated. In upholding her complaint of discrimination, the tribunal ordered back pay and damages to Heintz, and required the organization to adopt non-discrimination policies in keeping with the Ontario Human Rights Code. Significantly, the decision specified that any future contract cannot require behaviour consistent with Christian teaching on homosexual conduct or lifestyle.

The decision raises real questions for religious organizations that serve the general public. While parts of it are consistent with previous decisions on the employment rights of faith-based organizations, some of its discussion and analysis touches directly on religious doctrine, rather than on the more specific question of faith as a bona fide job requirement. (In fact, in the Anselem decision, which is cited by the tribunal, the Supreme Court stated that matters of compliance with religious doctrine are not for the court to decide.)

Both case law and day-to-day custom suggest that employment law in this area is not one size fits all, but rather is guided by a perception of whether membership in the faith can be considered a bona fide occupational requirement. Testimony in the OHRT hearing included representatives of medical and social service organizations operated by other faiths, including Salvation Army and Catholic groups. Most said they do not require that every job be filled by an adherent, or that staff agree to employment conditions based on religion. At the same time, the practice is consistent with the human rights code when membership in the faith group can be considered a job requirement, as has been ruled for teachers in faith-based schools.

Nevertheless, the decision challenges the value of employment and organizational contracts if a clearly-worded agreement signed voluntarily can so summarily be made non-binding. The employee in this instance signed the undertaking as a member of the denomination, understood its contents, yet wanted it disregarded later. Many organizations require participants to sign pledges agreeing to refrain from activities that are legal. Such agreements are fairly common not only in employment settings, but also in matters such as admission to independent schools, residences, clubs and co-operative housing. The OHRT decision could make all such contracts open to re-interpretation upon request.

In the year since the OHRT issued its decision, a non-Catholic teacher filed a complaint when his application for employment was not considered by a southwestern Ontario Catholic school board. A teacher in Alberta has filed a complaint with the provincial human rights agency because a Catholic school board discontinued his employment as a supply teacher when he notified them of his gender change. The board based the decision on the teachings of the church regarding gender identity. Both complaints were accepted.

Historically, the denominational hiring rights of Catholic schools have been explicitly protected by the Ontario human rights code, and have some protection in the codes of other jurisdictions. No one is suggesting that these rights, and the hiring practices of other faith-based agencies, are identical, but the decision in the Christian Horizons case could be cited credibly in future decisions on hiring rights. That is why some Catholic organizations have intervened or commented on the case, and why all will be watching it closely.

(McGarry is executive director of the Catholic Civil Rights League of Canada.)

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