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What happens with competing human rights issues

The Ontario Human Rights Code prohibits discrimination in employment, accommodations, services and contracts, on the basis of gender among a number of other prohibited grounds of discrimination.
A barber shop owner from Toronto is presently awaiting a decision from the Ontario Human Rights Tribunal because he refused to give a haircut to a woman. A haircut is a service.  He says his religious beliefs prohibit him from touching any woman that was not related to him.
His lawyer argues that the barber’s right to religious freedom under the Canadian Charter of Rights and Freedoms is violated if he is forced to provide haircutting services to women.
The woman who brought this complaint has been criticized by a number of editorials for being a troublemaker. It’s just a haircut, they say. Some have pointed out that there were lots of places where she could have got her haircut within steps of the barber shop. She is not looking for money, simply an order that the barber shop provide its services to women. Many people would agree with her critics. After all, why not just go somewhere else?
Many argue that if we are to embrace our multicultural heritage we need to find space to accommodate the various  religious beliefs that make up that rich diversity.
Nobody is talking about controlling somebody’s faith or beliefs. What one does behind the walls of a place of worship or home is private and protected.
But if a barber can refuse service based on this barber’s argument so can a massage therapist, a physiotherapist, a chiropractor, a podiatrist, a nurse, a doctor or a surgeon, to name a few.
After all, if there is another healthcare professional close by that you can simply choose to see instead, what’s the harm? There is no logical distinction between accommodating the barber’s religious beliefs and the surgeon’s. The fact that the surgeon’s extensive, precious and expensive education is heavily subsidized by taxpayers is neither here nor there.
Of course, once it is established that a nurse, under the protection of her freedom of religion, has the right to refrain from touching an unrelated person of the opposite sex, other consequences follow. Anyone refusing to hire a nurse because they can only give care to people of their gender will be alleged to have discriminated in employment based on religion. Once that allegation is made, it will be up to the employer to establish that accommodating the nurse who can only provide care to one gender would be an undue hardship for the employer. That will be a tougher test to meet once the nurse’s right to care only for his or her gender is established.
Imagine that I own a physiotherapy clinic and employ a number of healthcare professionals. The spiritual leader from my place of worship has advised me that it is contrary to the teachings of my faith for me to create or support an environment in which unrelated people of the opposite sex touch each other, regardless of whether they hold the same beliefs. I will hire you as a massage therapist, but you can only treat patients of your own gender.
My religious leader has also told me that I cannot create or promote a situation in which homosexuals touch people of their own gender in the course of treatment as to do so would be to promote temptation to sin. If you were gay, you can’t treat people of the opposite sex or your own…sorry apply elsewhere.
In the past, religious beliefs have been used to justify slavery and segregation. In the past and to this very day, religious beliefs are used to justify the marginalization and disempowerment of women and homosexuals.
Although I deplore it, I would defend to the death the right of religious groups to do and believe whatever they want in their homes and places of worship and to structure their religious organizations accordingly. The moment it is taken beyond those walls and affects anyone’s right to be free from discrimination in employment, services, contracts and accommodations, all bets should be off.
It’s not just a haircut.

Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published in the Hamilton Spectator, November 26, 2012
Ed Canning
Ed Canning
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