There’s a story from B.C. about a lesbian teacher at a Catholic girls’ school called Little Flower Academy who was told not to return to work after the employer and parents of the students learned she was a lesbian. She claims that the school told her that the parents were concerned she would corrupt their daughters. I presume that means that they thought she would ‘make them gay’ or, gasp, suggest to them that lesbians are not all evil. Apparently the employer has continued to pay her, but won’t let her come to work. Sounds like a suspension with pay.
The story doesn’t say that she has filed a human rights complaint. It appears she did a press release instead. The story says that the Minister of Education is ‘looking into’ her allegations. That’s kinda weird. Why wouldn’t the Minister just advise her to use the proper legal mechanism, which would be the Human Rights Code of B.C., which is very much like the Ontario Code? Has the employer violated the Code by telling a lesbian employee not to come to work because parents of students don’t want their daughter exposed to a lesbian?
First thing to decide is whether ‘lesbian’ is a protected ground of discrimination, because the Code only governs protected grounds, it doesn’t ban all types of discrimination. Take a look at Section 13, the key employment section:
1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
Is being a lesbian a protected ground?
If it is, then has the employer violated the Code? Do you think refusing an employee the right to come to work (but continuing to pay them) is “discrimination” in regards to employment or any term of employment?
If the treatment of the lesbian teacher is discrimination on the basis of a prohibited ground, then it is illegal, unless there is some defense for the employer in the Code. Sometimes human rights codes allow certain types of discrimination on prohibited grounds. What defenses are available in the B.C. Code? Keep reading Section 13:
(3) Subsection (1) does not apply
(a) as it relates to age, to a bona fide scheme based on seniority, or
(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
Does the Catholic school have a defense in this language? Well, 3(a) doesn’t apply, nor does 3(b). So the employer’s only hope would be (4), which says, essentially, that an employer can treat lesbians differently if not being a lesbian is a “bona fide occupational requirement” (BFOR). BFOR is not defined in the B.C. Code, so you would need to do legal research of the case law to figure out what the courts and the human rights Tribunal have said it means. The most important case on that point is the “Meiorin” decision of the Supreme Court of Canada, in which the Court explained how this part of the B.C. works. That case tells us that, to justify its rule that lesbians can’t teach at the school, the employer would need meet a three-step test:
1. That the rule is there for a purpose rationally connected to the performance of the job (not being a lesbian is related to proper performance of the job).
2. That the rule was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3. That the standard is reasonably necessary to the accomplishment of that legitimate purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer (p 298).
Do you think that the Catholic school could meet this test? Do you think that a Catholic school should be permitted to ban gays and lesbians from the workplace? What if the Catholic Church proclaimed that being a lesbian/gay is a sin in the eyes of their God? Should religious discrimination be exempted from human rights laws?
