Split Decision - The OHRC Religious Exemption is upheld by the court in Heintz v. Christian Horizons

In has been said that a good judicial ruling can leave both parties dissatisfied.  By that measure, the Divisional Court may have gotten this one right.  On May 14, 2010 the Ontario Superior Court, Divisional Court, released its Reasons for Judgment in the Ontario Human Rights Commission (the “Tribunal”) and Connie Heintz v. Christian Horizons.  This was not the first time that Christian Horizons and the Tribunal had squared off.  They also did battle in the Park case in 1992.  The heart of their conflict rests upon whether Christian Horizons, an evangelical Christian organization, could discriminate in the selection and discipline of its employees in the workplace.   The Park case set the bar in 1992.  The Tribunal hoped to use this case to reset that bar.  This lengthy decision deals with various points of law, too many for this article.  For the sake of brevity, this article will focus on the main issue of the case, whether Christian Horizons could continue to claim an exemption to allow it to discriminate under section 24(1) of the Code. 

Christian Horizons is a Christian organization that was founded in 1965 to reach out to society’s disadvantaged and marginalized people by ministering to persons with developmental disabilities. It has grown to over 180 residential homes in Ontario today and operates camp and day programs.  It employs in excess of 2,500 staff persons and cares for over 1,400 people.

In 1992 Christian Horizons was rocked by the Tribunal in the Park case.  Three years later they hired Connie Heintz as a support worker at a community living residence to provide care and support for developmentally disabled people.  She had “a deep Christian faith” and was trained in Christian counseling and ministry.  When she commenced working for Christian Horizons she signed contracts which included a Life Style and Morality Statement. During her employ she participated in various religious activities at Christian Horizons.  Four years into her employment, she “came to an understanding of her sexual orientation” and entered into a same sex relationship. Eventually her co-workers became aware and when her supervisor learned of it discussions ensued and she was offered counseling to restore her life to a state of compliance with the Christian Horizons’ Life Style and Morality Statement she had agreed to. 

Then one of her co-workers complained that Ms. Heintz had harassed her. After an inquiry she was warned in writing that if she failed to change her attitude and improve her performance, there would be no alternative but to recommend termination of her employment.  A month later she had become stressed, was unable to function properly at work and on her doctor’s advice, went on medical leave.  One month later she resigned from her employment. Four months after that, she filed her complaint with the Tribunal alleging that she had been discriminated against on the basis of her sexual orientation.

The main issue was whether Christian Horizons was a religious organization that was allowed an exemption under s. 24(1) of the Code to certain types of discriminatory activity in respect of its employees.  To claim the exemption, Christian Horizons had to prove that:

1.  It was a religious organization;

2.  It was primarily engaged in serving the interests of people identified by their creed and employed only people similarly identified; and

3.  The restriction in employment to persons similarly identified by creed was a reasonable and bona fide qualification because of the nature of the employment (the “BFOQ requirement”).

The Tribunal conceded in its decision that Christian Horizons was a religious organization and thereby satisfied the first part of the test.  But the tribunal said that Christian horizons missed the mark for the second and third parts of the test.  In dealing with the second requirement, the Tribunal said that while Christian Horizons provided opportunities for evangelical Christians to live out a religious calling, the totality of the evidence and a plain reading of s. 24(l)(a) led to the conclusion that it was not primarily engaged in serving the interests of evangelical Christians. Rather, it was served the interests of all people with developmental disabilities, Christians and non-Christians alike. Therefore, it failed to meet the second part of the three part test to qualify for the exemption.

In addition the Tribunal found that in adopting the qualification on employment imposed by the Life Style and Morality Statement, “no real effort was made to examine whether the requirement was in fact reasonably necessary or whether the employment could be performed without the discriminatory restrictions”. Therefore, Christian Horizons failed to satisfy the third requirement, BFOQ requirement as well.           

Christian Horizons appealed to the Divisional Court.  In dealing with the questions as to whether Christian Horizons “was primarily engaged in serving the interests of people identified by their creed and employed only people similarly identified”, the court concluded that the problem with the Tribunal’s approach was that it ignored the purpose of the exemption in s. 24(1).  The court said that that exemption conferred “a right to associate on certain groups so that they can join together to express their views and carry out their joint activities”.  Therefore, in determining whether a particular group served the interests of its members, defined in this case by a religious creed, one had to look at the overall purpose of the organization.  The court said that if the Tribunal’s strict, plain language approach was correct no religious institution would qualify for the exemption if religious adherence was a bona fide qualification.  That would be so even, for example, with respect to religious missionary or charitable activity if that activity was offered to those outside of that particular faith community. “In effect, the religious character of the charitable mission would be rendered impossible…”.

That dealt with part two of the test.  The court then dealt with whether the BFOQ requirement, or whether the qualification was a reasonable and bona fide because of the nature of the employment.  The court commented that the BFOQ defence is “well-tilled ground in human rights jurisprudence”.  In applying the BFOQ test the courts and tribunals have adopted the two part test laid down by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202 atp. 208 as follows:

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

Thus, the requirement or qualification must be both subjectively and objectively appropriate.  The onus rests with the employer to establish the BFOQ defence.

The Divisional Court found that there was no evidence that Christian Horizons had done a close examination of the nature and essential duties of the position of support worker or whether those duties required an adherence to the Life Style and Morality Statement, including its ban on same sex relationships.  It was just assumed that a morality code of some kind was required. In other words, whether or not the Life Style and Morality Statement was generated from the bottom up by the employees, there was no evidence that anyone, including Christian Horizons, had ever considered whether the prohibition on same sex relationships was necessary for the effective performance of a support worker in a home.  The court agreed with the Tribunal that Christian Horizons had not shown that the qualification that its support workers adhere to the Life Style and Morality Statement by not participating in same sex relationships was reasonable and bona fide because of the nature of that employment.

So the appeal was allowed in part. The order of the Tribunal was varied including “to state that Christian Horizons shall cease to impose a requirement in the Lifestyle and Morality Statement that support workers not engage in same sex relationships”.  As always, both sides claimed a victory.  In reality, as far as establishing new law, little was accomplished.  Christian Horizons and other religious organizations may still claim the exemption in s. 24(1) to justify otherwise certain discriminatory and prohibited activity under the Code.  On the flipside, while the exemption lives, it is not unbridled and the BFOQ test must be taken seriously.  

The Parks decision in 1992 recognized that religious organizations are unique and by their very nature are allowed to embark upon a certain amount of discriminatory activity that would otherwise not be permitted under the Code.  It also affirmed there must be restraint on that discrimination, that it must be a reasonable and bona fide qualification because of the nature of the employment.  This decision drives those principles home again.  Recently Paul Wells wrote in a Macleans magazine article that “People who believe in God and vote their beliefs often work hard. That makes them a potent ingredient in any political coalition anywhere. They win some and lose some. Always have, always will. These days they win more than they used to. They still lose a lot.”  You may or may not agree with Mr. Wells’ opining but whether the litigants to this case admit to it or not, his comment could describe their sentiments after the Divisional Court ruling.  As with any court case there was no doubt a price paid by those directly involved.  But beyond that after the dust settles from a legal jurisprudential perspective not much was really accomplished.