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Can New Brunswick University Refuse to Employ Gay Teachers?

Can a ‘Christian’ university refuse to hire gay teachers?

This is an issue I’ve discussed before, relating to a Baptist university in the U.S.   Then, I considered whether an Ontario university could do the same, and referenced a decision of the Ontario Divisional Court  called Heintz v. Christian Horizons, where the Court ruled that the termination of an employee for being a lesbian was a violation of the Code .  Satisfying the employer’s religious dogma was a bona fide occupational requirement of performing the sort of work the employee performed, which was mostly unrelated to religion.

Now the issue has arisen in New Brunswick at a school called Crandall University, which refuses to hire gay or lesbian teachers.  Here is a story from the CBC. Crandall has a ‘code’ that requires employees:

“be sexually pure, reserving sexual intimacy for within a traditional marriage between one man and one woman.”

So not only can gays and lesbians be denied employment under this policy, but so too can anyone who is not “sexually pure”, including anyone who has had sex outside of ‘marriage’.

Is this legal?

Well, the New Brunswick Human Rights Act clearly prohibits discrimination on the basis of “sexual orientation” (section 4(1)).  Section 4(5) then creates the exception:

4(5)  Despite subsections (1), (2), (3) and (4), a limitation, specification or preference on the basis of race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation, sex, social condition or political belief or activity shall be permitted if the limitation, specification or preference is based on a bona fide occupational qualification as determined by the Commission.

I’m no expert on the interpretation of this language in New Brunswick.  I would love to hear from any N.B. lawyers who are.  Unlike the Ontario legislation, there does not appear to be a requirement for the organization to serve ‘primarily” people of a certain religion.

By the way, would the requirement to ‘sexually pure’ used to deny employment to a heterosexual be covered by any of the prohibited grounds listed in section 4?

There are many interesting legal and policy questions involved in these cases.

Do you think a religious school should be granted a special license to discriminate in this way?

Given that there are myriad ways to interpret religious texts, who gets to decide what a religion’s beliefs are?  For example, lots of Christians believe that their God would disapprove of discrimination against the people Crandall discriminates against.

Do we want human rights tribunals deciding what a religion believes, after hearing testimony from religious experts?

Should the tribunal defer to whatever the school board says the religion believes?  What if a school said its religion believes people of a certain race or skin colour are inferior (and religious leaders have said this, by the way)?  Should they then be permitted to discriminate on that basis too? Where should the line be drawn between religious belief and out right discrimination?

Do you think that being heterosexual is a ‘bona fide occupational qualification’ for teaching calculus or being a janitor at a school?  Is your religious belief only relevant if you teach theology courses?

We will have to watch if a human rights complaint is brought against Crandall.

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2 Responses to Can New Brunswick University Refuse to Employ Gay Teachers?

  1. Peter Neumann Reply

    June 4, 2012 at 11:15 am

    It was the Ontario Divisional Court and not the Court of Appeal that issued the ruling in the Christian Horizons case. And the Court held that the employer did in fact meet the test of being “primarily engaged in serving the interests of persons identified by their” creed. On the other hand, what the employer failed to establish was that avoidance of same-sex marriage was, objectively speaking, a necessary qualification for the job of a support worker like Heinz who was not actively involved in converting the employer’s clients/residents to Evangelical Christianity and rather was primarily involved in tasks such as doing laundry, helping residents to eat, wash and use the bathroom, and taking them on outings and to appointments.

  2. Doorey Reply

    June 4, 2012 at 1:00 pm

    Thanks Peter, you’re correct. I noted that the Tribunal was overturned by the Divisional Court in my original post, but mixed that up in this updated entry. I will correct my entry above. Cheers, David

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