Canada's Split Decision on Hiring
Experts, organizations see mixed victory in recent court ruling.
Sarah Eekhoff Zylstra | posted 8/19/2010 09:13AM
Can Christian organizations in Canada discriminate based on religion when hiring employees? Such groups are still attempting to figure that out, months after a court decision was supposed to answer that question.
An Ontario Divisional Court ruled in May that Christian organizations can't take religion into account when hiring support employees. But at the same time, the decision gave Christian organizations more hiring freedoms than they had under earlier rulings, experts said.
Connie Heintz filed suit against her employer, Christian Horizons, in 2001 for discriminating against her because she was a lesbian. Christian Horizons, which ministers to the developmentally disabled, requires each employee to sign a Lifestyle and Morality Statement. The statement identifies unacceptable behavior, including adultery and homosexual relationships.
Heintz signed the statement when hired in 1995, but entered into a same-sex relationship in 1999.
Canadian law bars discriminatory hiring. However, religious organizations can claim an exemption "if they are primarily engaged in serving the interests of their religious community, where the restriction is reasonable and bona fide because of the nature of the employment," according to the court.
The Ontario Human Rights Tribunal determined in 2008 that Christian Horizons could not discriminate in its hiring because it was not primarily engaged in serving the interests of like-minded Christians, and because religious adherence wasn't a reasonable requirement for an employee caring for disabled people.
The appeals court overturned part of the tribunal's decision, ruling that Christian Horizons was serving like-minded believers by giving them an outlet to serve others, leaving the organization free to require its employees to adhere to its religious standards. But the restriction must be necessary from an "objective perspective."
On that ground, the appeals court said Christian Horizons could not discriminate against Heintz, since there was nothing in her tasks—cooking, laundry, and helping residents eat, bathe, and travel to appointments—that required her to refrain from a same-sex relationship.
Experts called the decision jarring.
Don Hutchinson, vice president and general legal counsel for the Evangelical Fellowship of Canada, said by deciding that Heintz's sexual orientation made no difference in her work, "the court failed to consider the importance of the overall structure of the organization and how Ms. Heintz being out of step with that structure would impact her and everyone else within the ministry."
The decision raised several red flags for Bret Scharffs, associate director of the International Center for Law and Religion Studies at Brigham Young University Law School.
"Anytime the court says 'objective perspective,' they're about to give their opinion; probably an opinion which is highly colored by their own views," he said.
But what was most troubling was the false dichotomy the court created between those who preach and those who live their faith, said Scharffs. While the compromise looks reasonable, it quickly unravels, he said.
"Focusing on whether someone has responsibility for evangelizing is deeply misguided, since the most profound sermons are often silent ones—preached in the performance of charitable service," said Scharffs. "Dismissing those who feed and bathe those who are disabled as not having a central religious function is especially ironic. Far from an 'objective' perspective, it reveals a deeply troubling and very personal belief by the court of what is and is not important."
August (Web-only) 2010, Vol. 54
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