Explaining the exception clause

In 1995 a woman we will call Sherry began working as a support care worker for people with developmental challenges in a group home setting. The organization that founded and ran the group homes and employed Sherry was an Evangelical Christian organization. It sought to create group homes for its clients which provided not only the support they needed but a Christian environment. It saw its activities in providing these services as part of the call of its faith to perform charitable works and share its beliefs.
Sherry had been raised in a Christian background and it was no surprise that she ended up working for this evangelical organization.
Long before Sherry had applied for the job, the employer had developed a code of conduct for employees to agree to as part of the employment contract. That code of conduct included an obligation, among other things, not to engage in homosexual relationships.
In the years after Sherry started working in the group home, she came to realize that she was a lesbian and eventually entered into a same-sex relationship.
She disclosed to two of her co-workers that she was a lesbian. Word got around and not to long after, her boss asked her if she was a lesbian and whether she was in a same-sex relationship. Sherry admitted to both.
Over the following months, although Sherry was not terminated outright, she was counseled by her boss to look for other employment and actually advised of openings in other organizations.
At one point, her boss offered her Christian counseling for “restoration”. At the end of the day, restoration meant counseling that would bring her back into compliance with the code of conduct, i.e. not to be in a same-sex relationship.
When a co-worker who appeared to be completely freaked out by Sherry’s sexual orientation alleged, a month after it was said to have happened, that Sherry had struck a client a full fledged investigation was launched. Despite the fact that no evidence emerged that any such abuse had taken place, the written report said while the investigation was inconclusive, Sherry’s co-worker’s allegations needed to be taken seriously, whatever that meant.
Throughout this period, Sherry herself was experiencing a crisis of faith. The faith she had so long held dear seemed to be turning on her from her perspective. Eventually Sherry felt that the writing was very clear on the wall and she had no option but to leave her employment.
Sherry brought a complaint against her employer for violation of her right to free from discrimination in her employment on the basis of her sexual orientation. The hearing took 21 days. The chair of the Ontario Human Rights Tribunal that decided the case struggled in their written decision to balance the employer’s right to freedom of religion with Sherry’s right to be free from discrimination on the basis of her sexual orientation.
There is a section of the Ontario Human Rights Code that makes an exception from the prohibition against discrimination in employment. It states that a religious organization that is primarily engaged in serving the interests of a person identified by any of the prohibited grounds of discrimination under the Code can give preferences in employment to people similarly identified as those the organization serves. The prohibited grounds of discrimination under the Ontario Human Rights Code include, among other things, race, colour, creed, disability and sexual orientation.
Sherry’s employer tried to use this exception to justify its code of conduct.
Cleary, this section applies to a religious organization that is engaged in serving the needs of its own members. A Christian school seeking to employ only teachers of the same beliefs to teach students from that religious organization can clearly have such a code of conduct and enforce it without fear of a successful human rights complaint.
The key there, however, is that the clients, the people being served, are members of the same creed. It makes sense that only Christian should teach in a Christian school or that an organization created to further the interests of a particular racial group should be allowed to employ only members of that group if they want to.
Sherry’s employer’s primary role was serving the needs of developmentally challenged individuals. It did not require that people living in their group homes believe in their creed.
Let me put it another way. If a particular church wanted to create a seniors residence only for people of their faith with the aim of providing an environment in keeping with their religious tenets and traditions, they would be free to employ only other members of their faith in positions that were involved with helping to create that environment.
Even if all these conditions were met, belonging to the same faith would have to be a reasonable and bona fide qualification for the job. Arguably, the cook who has no client contact need not belong to the same faith.
Sherry’s employer did not qualify for this exception because they were primarily engaged in providing services to people with disabilities, not other evangelical Christians. Even if they had qualified, a question would have arisen as to whether abiding by the code of conduct was necessary to actually do the job Sherry was hired to do.
At the end of the day, Sherry was awarded almost two years lost wages, $10,000 in general damages and $5,000 for mental distress.
While this an important and interesting case, it is not novel. The Tribunal chair simply interpreted the words of the exception in the Ontario Human Rights Code as the legislators wrote them.
There have been some religiously based school boards that have started to allow students not of their faith to attend their schools. They may want to rethink this approach. They may eventually lose their right to give preference in hiring to teachers of the same faith. I’m sure there would be a lot of unemployed Teachers College graduates who would be only too happy to file a complaint.
 As published in the Hamilton Spectator, August 2, 2008
Ed Canning
Ed Canning
P: 905.572.5809