One of my students pointed out a story in the Toronto Star yesterday about a Southern Baptist university called Shorter University in Georgia that is requiring employees to sign a document that declares:
If the employee doesn’t sign, or is in fact gay, or I assume, has had premarital sex or an affair, they lose their job. Wow, that is some small pool of applicants!
Would this be lawful in Ontario?
That’s a fun question for my employment law class. Walk through the Human Rights Code. Begin with Section 5, which says this:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
So far, that tells us that an employer in Ontario cannot fire or refuse to hire an employee because that person is gay or of a different religion than the employer would prefer (“creed” includes religion and religious beliefs). This means that the Shorter University practice of refusing employment to people who are gay (or who refuse to denounce homosexuality and premarital sex) would violate the Code, unless there is some other ‘defence’ or ‘exemption’ elsewhere in the Code that allows an employer to do this.
So we need to look for an exemption. Many of the exemptions are found in Section 24. Section 24(1)(a) says this:
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 a university that refuses employment to people who do not sign a “lifestyle” form and who are gay or who have had premarital sex falls within this exception?
The Ontario Human Rights Tribunal considered a similar issue in a case from 2008 called Heintz v. Christian Horizons. That case involved a lesbian who was dismissed from a Christian organization that helped disabled people because she did not conform to the lifestyle requirements, that included refraining from homosexuality. There, the Tribunal ruled that Christian Horizons was not “primarily engaged in serving the interests of Evangelical Christians”, because it mostly was involved in helping disabled people, regardless of their religious beliefs. The Tribunal said this:
… the Legislature has made a policy choice in determining how the rights of a religious organization, and the rights of an individual to be free from discrimination in employment should be balanced. It has determined that where the organization is primarily engaged in serving the interests of its members or its community of co-religionists, it will be granted freedom to restrict hiring to members of its faith, subject to the qualification being reasonable and bona fide. Where, however, it branches out into the public realm, where the nature and primary purpose of its activity creates a relationship with the broader public, its rights are then limited, and, as pertaining to the social activity of employment, it cannot infringe on the fundamental rights of others.
The Tribunal also found that not signing the Lifestyle document shunning homosexuality was not a “reasonable and bona fide qualification” of performing the job in question. To satisfy that part of Section 24(1)(a), according the Supreme Court of Canada in the Meiorin decision, the employer must demonstrate that “the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.” The employer failed in that case to show that helping disabled persons required strict adherence to the Lifestyle dogma of the Christian organization. This later ruling was upheld on judicial review, though the Court ruled that the Tribunal erred in finding that Christian Horizons was not primarily engaged in serving the Christian community.
If this reasoning were applied to a religious university, how do you see it being decided? If the University accepts students who are not “Baptists”, would that mean it does “primarily serve the interests of Baptists”?
Is it “reasonably necessary” for a math professor at a university to adhere to the a Lifestyle code that prohibits homosexuality and premarital sex?
Should religion be a justification for discrimination that is unacceptable in all other spheres of society?