Religious, Philanthropic Exemption under the Ontario Human Rights Code

An important human rights case is winding its way through the Ontario courts.

The case relates to an appeal to the Divisional Court of the Tribunal's decision in Heintz v. Christian Horizons where the Tribunal considered, among other things, whether section 24(1) of the Ontario Human Rights Code applied to the employer ("a not-for-profit corporation which self-identifies as an Evangelical Christian ministry."). The Complaint was summarized by the Tribunal as follows:

"The Commission and Ms. Heintz allege that Ms. Heintz was terminated from employment because of her sexual orientation, and the requirement that all employees sign the Lifestyle and Morality Statement is a violation of the Human Rights Code. They also allege that the manner in which Ms. Heintz was treated, after she came out as a lesbian, constitutes discrimination on the grounds of sexual orientation.

Christian Horizons argues that it falls within the “special employment” provisions of section 24(1)(a) of the Human Rights Code, which permits certain organizations to restrict hiring or give preference in employment to persons identified by one of the proscribed grounds of discrimination, in this case, creed."

Section 5 of the Code provides that:

5.  (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Section 24(1) provides that:

24. (1) The right under section 5 to equal treatment with respect to employment is not infringed where,

a. a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

Accordingly, the rights under section 5 to equal treatment in employment is not absolute where section 24(1) applies.  The employer, in this case, conceded at the commencement of hearing that its Lifestyle and Morality Agreement violated the Code.

As the Tribunal observed, "This case raises extremely difficult legal and public policy issues". 

There are four elements to the section 24(1)(a) exemption where the organization must establish, on a balance of probabilities that:

a. it is a religious organization;
b. that it is primarily engaged in serving the interests of persons identified by their creed;
c. it employs or gives preference in employment to persons similarly identified; and
d. that the qualification (the restriction in employment to persons similarly identified by creed) is a reasonable and bona fide qualification because of the nature of the employment.

The Tribunal found that while the employer met (a) it did not establish (b) and, it held, that the evidence did "not support finding that Christian Horizons is primarily engaged in serving the interests of persons who are adherents to its articles of faith as expressed in the Doctrinal Statement and the Lifestyle and Morality Statement." Further, the Tribunal concluded that, in the circumstances, it did "not meet the final element in section 24(1)(a)".

The Tribunal concluded that the employer had:

.... violated Ms. Heintz’s right to be free from discrimination in two respects. First, by requiring that all employees sign and conform to the Lifestyle and Morality Statement, it imposed a discriminatory condition of employment on Ms. Heintz, which ultimately resulted in the loss of her job. This violates section 9 of the Code and is not saved by section 24(1)(a). Second, Christian Horizons infringed Ms. Heintz’s right to be free from discrimination in employment by creating or permitting a poisoned work atmosphere, and by failing to take necessary measures to ensure Ms. Heintz did not have to endure discrimination at work because of her sexual orientation contrary to section 5. This infringement is not subject to a section 24(1)(a) exemption even had the exemption been found to otherwise apply. Extensive remedies were awarded.

It seems that an appeal was filed with the Divisional Court and a decision was recently released that dealt with whether intervener status would be granted to certain organizations.

This is a case to be watched given the important discussion of, among other things, section 24(1) of the Code.