More on Hiring Discrimination in Catholic Schools

I did a post last week noting the case of a lesbian teacher at a Catholic girls school in B.C. who had been refused the right to come to work after the school learned of her sexual orientation.
In the Globe and Mail today there is a story about how teachers are pretending to be Catholic in order to get jobs in the Catholic education system in Toronto.   In last week’s post, I asked whether religious-based schools should be permitted to discriminate against employees if the religion itself discriminates.  For example, if the Catholic Church shuns lesbians and treats them as sinners, should that give a Catholic school the right to be exempted from human rights laws prohibiting discrimination on the basis of sexual orientation?
This new story gets at the right of the employer to simply weed out applicants on the basis of their religion.  Catholic schools in Ontario (and in other provinces) make applicants fill in forms attesting to their Catholic faith, and also require a priest to complete a form that describes the applicants role in the Church.  You can see the forms form the Dufferin-Peel Catholic School Board here, for example.
There is no doubt that this would amount to discrimination on the basis of religion under Section 5 of the Human Rights Code.  In fact, a non-Catholic teacher in Guelph recently challenged the Catholic school board’s discriminatory hiring practices.  However, the question is whether the discriminatory hiring practices are ‘exempted’ under some other section(s) in the Code.  So what sections allows the Catholic School Boards to behave this way?
Well, look first at the general exemption in Section 24(1)(a) that applies to “educational” organizations.  It reads:

The right under section 5 to equal treatment with respect to employment is not infringed where,
(a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;

Do you think that sections protects a religious-based school board who hires only teachers of that religion?
The other relevant section in relation to Catholic schools in particular is Section 19, which preserves for Catholic school boards those rights that were protected in the Constitution of 1867.  Back then, Catholics were a minority and the Constitution protected the right in Canada for Catholic schools to exist with the support of Canadian governments.  Section 19 clarifies that the ban on discrimination in employment on the basis of religion in the Code is not intended to limit the the special status conferred on Catholic schools under the Constitution.
These legal issues were explored in the case Daly v. Ontario in the late 1990s, in case you are interested in more reading on the subject.