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Canada's Split Decision on Hiring

Experts, organizations see mixed victory in recent court ruling.

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."

The court seems to have left a back door for religion-based hiring open, Hutchinson says, by recognizing the right of Christian social service agencies to discriminate in some positions.  If the senior management looked carefully at each job description and documented how that employee needed to follow the lifestyle policy, then the court may have come to a different decision, he said.

But the more rules and warnings a religious organization issues, the stronger the impression that its faith is nothing but a set of rules about behavior, said Thomas Berg, professor at the University of St. Thomas School of Law. "The court is trying to reach a compromise between some faith-based employment decisions on one hand, and making it possible for gay people to be employed on the other hand."

The court's compromise has an inherent tension, said Berg, since civil rights laws exist not just to ensure a group can be employed, but because the discrimination is wrong.

The court's unsatisfactory compromise won't be the last word, according to Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance. "My guess is we'll see these kinds of things happen more often, now that we've discovered this law has a deep, deep flaw in it," he said. "The organizations that thought they were doing fine because they never got challenged are very vulnerable because of that."

Related Elsewhere:

Earlier Christianity Today articles on Canada include a look at how a ruling against Canada's Hutterite community had a similar upside for the country's religious groups.

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