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Can an Employer Require Employees to Declare they are not Gay?

One of my students pointed out a story in the Toronto Star yesterday about a Southern Baptist university called Shorter University in Georgia that is requiring employees to sign a document that declares:


“I reject as acceptable all sexual activity not in agreement with the Bible, including, but not limited to, premarital sex, adultery, and homosexuality.”

If the employee doesn’t sign, or is in fact gay, or I assume, has had premarital sex or an affair, they lose their job.  Wow, that is some small pool of applicants!

Would this be lawful in Ontario?

That’s a fun question for my employment law class.  Walk through the Human Rights Code.  Begin with Section 5, which says this:

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.

So far, that tells us that an employer in Ontario cannot fire or refuse to hire an employee because that person is gay or of a different religion than the employer would prefer (“creed” includes religion and religious beliefs).   This means that the Shorter University practice of refusing employment to people who are gay (or who refuse to denounce homosexuality and premarital sex) would violate the Code, unless there is some other ‘defence’ or ‘exemption’  elsewhere in the Code that allows an employer to do this.

So we need to look for an exemption.  Many of the exemptions are found in Section 24. Section 24(1)(a) says this:

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;

Do you think that a university that refuses employment to people who do not sign a “lifestyle” form and who are gay or who have had premarital sex falls within this exception?

The Ontario Human Rights Tribunal considered a similar issue in a case from 2008 called Heintz v. Christian Horizons. That case involved a lesbian who was dismissed from a Christian organization that helped disabled people because she did not conform to the lifestyle requirements, that included refraining from homosexuality.  There, the Tribunal ruled that Christian Horizons was not “primarily engaged in serving the interests of Evangelical Christians”, because it mostly was involved in helping disabled people, regardless of their religious beliefs.  The Tribunal said this:

… the Legislature has made a policy choice in determining how the rights of a religious organization, and the rights of an individual to be free from discrimination in employment should be balanced.  It has determined that where the organization is primarily engaged in serving the interests of its members or its community of co-religionists, it will be granted freedom to restrict hiring to members of its faith, subject to the qualification being reasonable and bona fide.  Where, however, it branches out into the public realm, where the nature and primary purpose of its activity creates a relationship with the broader public, its rights are then limited, and, as pertaining to the social activity of employment, it cannot infringe on the fundamental rights of others.

The Tribunal also found that not signing the Lifestyle document shunning homosexuality was not a “reasonable and bona fide qualification” of performing the job in question.    To satisfy that part of Section 24(1)(a), according the Supreme Court of Canada in the Meiorin decision, the employer must demonstrate that ”the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.” The employer failed in that case to show that helping disabled persons required strict adherence to the Lifestyle dogma of the Christian organization.  This later ruling was upheld on judicial review, though the Court ruled that the Tribunal erred in finding that Christian Horizons was not primarily engaged in serving the Christian community.

 

If this reasoning were applied to a religious university, how do you see it being decided?   If the University accepts students who are not “Baptists”, would that mean it does “primarily serve the interests of Baptists”?

Is it “reasonably necessary” for a math professor at a university to adhere to the a Lifestyle code that prohibits homosexuality and premarital sex?

Should religion be a justification for discrimination that is unacceptable in all other spheres of society?

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3 Responses to Can an Employer Require Employees to Declare they are not Gay?

  1. Steven Reply

    November 3, 2011 at 12:17 pm

    Did you see the decision from the Divisional Court on the appeal? That decision is here: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc2105/2010onsc2105.html

    The really perplexing part of the Divisional Court’s decision is at paragraph 118:

    [118] In our view, the order to cease imposing the L & M Statement as a condition of employment (stayed for eight months) is overbroad. The offending part of the Statement was the requirement that employees not engage in same sex relationships. Understandably, given the Tribunal’s conclusions, the reference to same sex relationships must be deleted from the Statement, as it is discriminatory.

    [119] However, there is no explanation from the Tribunal as to why many other provisions of the Statement are suspect – for example, prohibitions on theft, fraud, physical aggression, abusive behaviour, sexual assault and harassment, lying and deceit. Other elements of the Statement may raise issues in relation to the Code, but they were not the subject matter of the complaint before the Tribunal. Therefore, paragraph 3 of the order is amended to state that Christian Horizons shall cease to impose a requirement in the Statement that support workers not engage in same sex relationships.

    The Divisional Court seems to have forgotten that the Christian Horizons Lifestyle and Morality statement prohibited “extra-marital sexual relationships (adultery)” and “pre-marital sexual relationships (fornication)”. In fact, Christian Horizons had been the subject of an earlier human rights complaint because of it’s position regarding common-law relationships.

  2. Dennis Buchanan Reply

    November 4, 2011 at 12:35 pm

    I did some pro bono work for a conservative Christian church, helping them design an anti-harassment policy, shortly after the Divisional Court released its decision in Christian Horizons.

    There’s authority for a suggestion that churches have fairly wide latitude in terms of BFORs, but Christian Horizons *may* scale that back somewhat. A real cautionary tale for religious groups, and one they certainly don’t like being told about.

    It seems to me that there’s likely a BFOR exemption justifying such declarations for anyone who, the employer can establish, may be put into the position of having to provide spiritual guidance or support for members of the church. I still think a church (and likely a religious university) will have an easier time meeting that threshold than a religious charity like Christian Horizons, but even then, try telling conservative Christians that they may not be able to discriminate on the basis of sexual orientation when hiring a janitor…

    As for the math professor query…many students look to their professors as more than just a human encyclopedia indexed by syllabus. Even at the university level, a professor can become a bit of a role model, especially in smaller class environments (which exist in many religious universities). I think that there would be a solid argument that a Baptist university could make in Ontario that (a) they fall into the s.24(1)(a) exemption and (b) it would be incongruous with their religious mandate to put professors at the front of the classroom who openly lived lifestyles contrary to Baptist values.

    • Doorey Reply

      November 4, 2011 at 1:20 pm

      Thanks Dennis. I confess to having some trouble with the janitor/math professor examples. The difficult I have is that the test is “honestly held beliefs”. Two expert religious scholars can (and often do) completely disagree on what a religious text says about this or that. Some theological experts argue that the Book of Mormon says blacks are lesser humans who have been branded by God and should not be permitted to hold positions of authority equal to whites. If an orthodox Mormon organization claims that they honestly believe that interpretation of the Book of Mormon, should they be permitted to refuse employment to all black people based on a religious exemption? I see no difference between that example and the example of a university refusing janitors and math professors employment on the basis that their particular interpretation of the Bible treats gays and homosexuality as sinful.

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