The May 14, 2010 decision of the Ontario Divisional Court in Heintz v. Christian Horizons has been claimed as a victory by both sides. A close reading of the decision suggests that the Court has left it open for certain kinds of employers who properly frame the reasons for occupational qualifications to make discriminations that could be upheld as covered by the freedom of religion. On the other hand, insistence on such things as sexual conduct rules where these are not properly connected to the job duties cannot be justified simply by a general “religious ethos” claim on behalf of religious employers. This decision will have to be taken into account in any religious work-related situation involving claims of discrimination where an employer seeks to rely on religious liberty as the basis for the job requirement.
The decision involved whether a religious employer, which operates homes for developmentally challenged persons, could require that employees comply with a Lifestyle Policy that prohibited (amongst other things) same-sex sexual conduct. Such an employment decision, unless fitting within the “special employer” exemption and being a bona fide occupational qualification, would have been in breach of the Ontario Human Rights Code.
The Ontario Human Rights Tribunal had found that the employer, which identifies itself as an evangelical Christian organization, had breached the Code, and that it did not qualify as a “special exemption” (religious) employer because it served people in the home, some of whom were not evangelical Christians, and because it had not satisfied the test to show that a ban on gay or lesbian conduct was objectively related to the job duties in the employer’s homes. The Tribunal read the exemption section narrowly and in such a way as to limit it only to religious projects that served adherents of the particular religion. If a religious project served others who were not members of the religion, even its “guiding minds” could not be required to be religious according to the Tribunal.
Second, and in relation to this holding, the Tribunal had accepted a “public/private” distinction by which religious employers (and other “special employers” by implication) would be held by a different standard with respect to religious activity when they entered “the public.” Both of these findings were of great concern to many religious groups and organizations.
The Divisional Court had little difficulty finding these holdings by the Tribunal to be incorrect and said that this sort of interpretation would be, in fact, an “absurd” result given the important work that religious projects do for those who are not members of their own religion. The Court held that religious organizations would not lose the protection of the Code to impose faith-based requirements on their employees simply because they served people outside that particular faith.
The Court then turned to evaluate whether the insistence of the employer on a Lifestyle Policy was a bona fide occupational qualification. The Court held that because the support workers in its homes were not directly engaged in instilling or teaching the evangelical Christian religion to the residents of the employer’s homes, that the requirement to adhere to the Lifestyle Policy was not a bona fide occupational qualification. The Court suggested that the employer could have discharged its burden of proving that sexual orientation restrictions were reasonable and bona fide qualifications if it could show that the requirement that its support workers adhere to the Lifestyle Policy by not participating in same sex relationships was reasonable because of the nature of that employment. It then suggested that the connection, however, had to be proselytizing or teaching.
It is not clear why the teaching and proselytizing aspects of the freedom of religion are singled out in a non-education case such as this case. Why limit religious freedom in relation to work to “education” or “spreading the faith”? Why not focus on the religious groups’ own understanding of how religion relates to the workplace? Had that been the test, and had the Court heeded previous warnings of the Supreme Court against courts making themselves the arbiters of religious beliefs, one could have imagined a rather different outcome.
So where does this leave religious employers? The answer is not clear. At the very least an organization will have to show that it has made a searching inquiry of all the job duties of each position in a religious organization to determine whether any conduct and lifestyle restrictions are objectively related to the job duties in question. Religious employers in future will have to be even more careful to explain in documents setting out job duties and explaining the nature of the organization and how from the religious perspective every job relates to the “religious mission” of the organization. We would be pleased to assist you with this analysis.