Promoting a Flourishing Society

LexView 70.0 - Associational Rights for Religious Communities

September 27, 2010

Can faith-based charities legally demand employees adhere to codes of conduct that are in keeping with an agency's religious principles?

When the evangelical charity Christian Horizons dismissed one employee because she had violated its rules by living in a same-sex relationship, an Ontario Human Rights tribunal said "No, they can't." On appeal, however, the Ontario courts say, "Oh, yes, they can" . . . sort of.

Ontario Human Rights Commission v. Christian Horizons
2010 ONSC 2105
Ontario Divisional Court

Date of Decisions: May 14, 2010
Date of Issue: September 27, 2010

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Discrimination, bona fide occupational qualification, sexual orientation, freedom of religion, freedom of association, equality, equal treatment, employment, Human Rights Code

Summary of Facts:

Christian Horizons was founded in 1965 to minister to people with developmental disabilities in an Evangelical Christian environment. It now employs more than 2,500 staff and cares for over 1,400 persons in more than 180 residential homes in Ontario.

Christian Horizons was previously subjected to a human rights complaint, resulting in the decision in Parks v. Christian Horizons (1992). In that decision, the Ontario Board of Inquiry determined that Christian Horizons had failed to apply lifestyle standards consistently and failed to inform employees of these requirements. Following this decision and after consulting with employees, Christian Horizons created lifestyle requirements that reflected its religious nature and that would be applicable to all employees.

The lifestyle statement prohibited a variety of behaviours, including extra- and pre-marital sex, using pornography, homosexual relationships, theft, fraud, abusive behaviour, lying and deceit. It was expressly tied to Christian beliefs, standards and values.

Ms. Connie Heintz was employed by Christian Horizons as a support worker in 1995. She signed the lifestyle statement in 1995 and 1996. In 1999, Ms. Heintz entered into a same-sex relationship. She disclosed this to coworkers and Christian Horizons, which offered her counseling to assist her in complying with the lifestyle statement.

In 2000, a coworker complained that Ms. Heintz had harassed her. Ms. Heintz was issued a discipline letter after an investigation. She went on medical leave in August of 2000 and resigned in September of that year. In January of 2001, she filed a human rights complaint, alleging discrimination on the basis of sexual orientation and a poisoned work environment.

Before the Human Rights Tribunal, Christian Horizons conceded that unless s.24(1)(a) of the Human Rights Code applied, it did discriminate against Ms. Heintz. Subsection 24(1)(a) reads as follows:

Special employment

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

This permits a religious organization that primarily serves the interests of and employs persons identified by their creed to discriminate if the employment restriction is a reasonable and bona fide requirement or qualification.

The Tribunal held that Christian Horizons was not primarily engaged in serving the interests of persons identified by their creed. It also held that in adopting the lifestyle statement, Christian Horizons made "no real effort . . . to examine whether the requirement was in fact reasonably necessary or whether the employment could be performed without the discriminatory restrictions" (para. 161).

The Tribunal made a number of orders, including requiring Christian Horizons to cease using the lifestyle statement and pay damages to Ms. Heintz. Christian Horizons appealed.

Significant Issues:

  1. Christian Horizons provided its support services to disabled persons, regardless of religious affiliation or belief. A significant question in the case was whether it was still "primarily engaged" in serving the interests of persons identified by their creed. This was a requirement of the s.24(1)(a) statutory exemption from a charge of employment discrimination.
  2. The second significant issue was whether the lifestyle statement was a reasonable and bona fide occupational qualification ("BFOQ") for Christian Horizon's support workers. If not, Christian Horizons was not able to rely on s.24(1)(a).
  3. The Human Rights Tribunal had found that neither of these requirements of s.24(1)(a) had been met.
  4. The remaining issues were whether there was evidence to support a finding that Christian Horizons permitted a poisoned work environment and whether the Tribunal's ordered remedy was reasonable.

Decision and The Court's Reasons:

The Court noted that the Tribunal departed from Parks by discounting the idea that Christian Horizons served two communities: residents and their families and Evangelical Christians who founded and operated Christian Horizons for reasons connected to their religious beliefs.

The Court also discounted the argument that since Christian Horizons served members of the public, the protection of s.24(1)(a) would not be available. It rejected the argument that s.24(1)(a) incorporates a distinction between private and public operations, protecting otherwise discriminatory behaviour only when a religious organization operates in an entirely private sphere.

In a number of prior decisions, the Supreme Court of Canada has been clear that special interest protections against human rights obligations, such as s.24(1)(a), should be construed broadly. They are not simply "rights limiting" provisions; they also confer rights on those falling within their protection. The Court recognized that such provisions are intended to promote the fundamental freedoms of persons to associate together to engage in pursuits free from the anti-discrimination norm.

The Court recognized that the Tribunal's interpretation of this provision would "put out of business religious organizations that minister to the disadvantaged as an expression of their religious faith" and that "the religious character of the charitable mission would be rendered impossible if the mission served individuals outside of the faith group". In the result, the Court held that the Tribunal had failed to respect the religious character of Christian Horizons and the purpose of s.24(1)(a) to protect group rights. It held that Christian Horizons was primarily engaged in serving the interests of persons identified by their creed.

With respect to whether the homosexual relationship prohibition in the lifestyle statement was a BFOQ, the Court held that the Tribunal's determination was reasonable. The Court was persuaded that Christian Horizons' leadership had not done a close examination of the nature and essential duties of the position of support worker and why the prohibition was necessary to those duties.

Noting that Ms. Heinz participated in prayer, hymn singing and Bible reading, the Court differentiated between the religious character of Christian Horizons and the specific tasks undertaken by Ms. Heintz, such as cooking, cleaning, laundry and assisting residents to eat, wash and use the bathroom. Since support workers were not involved in converting residents or their families to Evangelical Christianity, it concluded that Christian Horizons had not met the objective criteria of establishing the lifestyle statement as a BFOQ.

The Court also concluded that there was evidence to support the Tribunal's finding of a poisoned work environment, in part because the Tribunal found that the discipline letter issued to Ms. Heintz was "tainted by a discriminatory animus".

Lastly, the Court held that the Tribunal's order compelling Christian Horizons to cease imposing the lifestyle statement as a condition of employment was overbroad. However, it did agree that the provision dealing with homosexual relationships should be deleted. The Court also removed the terms of the Tribunal's order that Christian Horizons review its employment policies and report to the Tribunal and Ms. Heintz on proposals for change.

LexView Commentary:

In Trinity Western University v. British Columbia College of Teachers, Justices Iacobucci and Bastarache wisely noted that "[t]he diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected." That case dealt with religiously based lifestyle restrictions and whether accreditation of a teacher education program could be denied based on a prohibition of homosexual behaviour. The Court acknowledged the potential for discriminatory impact of such documents, but also reminded us that equality rights are not to be so broadly applied as to eclipse the rights of others (see LexView 46.0).

Allowing Religion to Engage with Society

Christian Horizons deals with a similar document, but more directly in applying human rights laws. The considerations of the Court were necessitated by the wording of the statute, but the admonition of the Supreme Court of Canada in Trinity Western is nevertheless apropos.

As in Trinity Western, the Christian Horizons case concerns the self-definition and activities of a religious community. The Court rightly pushed back the Human Rights Tribunal's decision, which would have allowed unjustified legislative intrusion into how religious communities define themselves.

The Tribunal would have narrowly construed the question of whether Christian Horizons was "primarily engaged in serving the interests of persons identified by their . . . creed". By focusing narrowly on Christian Horizons' activities in serving the disabled, the Tribunal eschewed any real attempt to understand its religious mission.

As recognized by the Supreme Court of Canada in Syndicat Northcrest v. Amselem the essence of religion includes practices that allow "individuals to foster a connection with the divine or with the subject or object of that spiritual faith". Freedom of religion in s.2(a) of the Charter protects religious practices and religiously motivated actions. In addition to departing from the precedent in Parks, the Tribunal's analysis of the purposes of Christian Horizons and the communities it served wrongly constricted the protection of religious groups in s.24(1)(a) of the Human Rights Code.

The Court corrected the Tribunal's error by recognizing that, at its essence, Christian Horizons directly served Evangelical Christians by providing them an outlet for the Christian service impulse so directly connected with their faith. In doing so, it brought the balance of human rights closer to an acceptable equilibrium.

The Court's acknowledgment of the religious nature of Christian Horizons allows religious organizations to define themselves and their own mission, consistent with the tenets of their faith. An impoverished concept of equality and freedom of religion would only allow religious groups to do so within the private confines of home, church, temple and mosque.

Recognizing that public engagement and service to the broader community is often intertwined with religious practice allows both stronger diversity in society and a more balanced view of the secular state. In order for Canadian society to be secular, it need not be immunized from religion or the public influence of religion. It must welcome the interaction of both religious and non-religious; worldly and sacred.

In more formal terms, the Court followed prior Supreme Court of Canada decisions rejecting the argument that provisions such as s.24(1)(a) were "rights limiting" provisions, as opposed to ones that confer and recognize religious rights and freedoms. In doing so, the Court reinforced that human rights provisions will be read to incorporate freedom of religion and freedom of association. Had it not done so, the ability of many organizations that serve the public to maintain their religious character would be rendered almost impossible. Without this level of recognition, religious groups would be faced with the alternative of abandoning their religious foundation or removing themselves from public service. Both options push religious communities to the sidelines of our society, rendering them powerless to help anyone but their own members.

Chipping Away at Associational Rights for Religious Communities

Unfortunately, the Court did not push back the application of human rights limitations on religious groups far enough. As a necessary part of determining whether s.24(1)(a) applied to protect the right of Christian Horizons to impose a homosexual relationship restriction on it employees, the Court was required to determine if the lifestyle statement is a BFOQ. This analysis requires a determination—at a functional level—of whether the requirement is objectively necessary.

The Court focused in on the particular restriction, homosexual relationships, and whether there was a connection between it and employment as a support worker. The Court did not question the finding that Christian Horizons subjectively believed, on religious grounds, that the restriction was necessary.

In considering the dichotomy between the subjective and objective elements of the BFOQ test, one is reminded of the constitutional distinction between assessing the sincerity of religious beliefs and assessing their validity. In considering freedom of religion claims, the Supreme Court of Canada has been clear that courts in Canada are only permitted to consider whether religious beliefs are sincerely held, not whether they are good or valid.

In conducting an objective assessment of whether Christian Horizons needed to impose specific elements of the lifestyle restriction on Ms. Heintz, the Court allowed itself to delve too deeply into the specific tenets of the Evangelical Christianity espoused by the Christian Horizons community.

Other human rights cases have also pushed the boundaries of protecting against state assessment of the validity of religious belief. In Smith and Chymyshyn v. Knights of Columbus (see LexView 54.0), courts and human rights tribunals have focused on whether strictly enforcing anti-discrimination provision would conflict with "core" religious beliefs. In conducting this analysis, they must determine the nature of specific tenets of faith and how essential they are to the religion as a whole.

Human rights legislation has generally been found to be constitutional in Canada. If a provision is under-inclusive or otherwise fails to accord with the Charter, courts have shown a willingness to interfere with human rights statutes. At a minimum, the provisions in human rights legislation must be applied in a manner that recognizes and is consistent with the guarantees of the Charter, including freedom of religion and freedom of association.

The objective part of the BFOQ analysis in this context inherently involves an assessment of how important specific religious conduct standards are to the work done by and in an admittedly religious community. It is not enough under human rights precedents to establish a sincere belief that those working as part of the religious mission share beliefs and live in accordance with them in order to continue as a member of the community. The courts also require that each specific behavioural requirement be justified against the particular work tasks being performed. This chips away at the associational rights of the organization and its ability to define itself based on sincerely held religious beliefs.

While common in human rights cases, the nature of this inquiry is contrary to the principles underlying Canadian freedom of religion enunciated so eloquently in Amselem. In conducting a narrow objective analysis, the Court placed Christian Horizons' freedom of religion and freedom of association on a precipice, the fate of which was to be determined on the Court's view of whether a practicing homosexual could functionally do the job of a support worker.

The question ought to be whether it is objectively legitimate for an organization to impose Christian lifestyle standards and whether they are believed to be sincerely necessary by the organization. Analyzing each specific lifestyle standard against particular job functions places the court in the position of assessing the validity of religiously motivated requirements. It allows the state to second guess theological choices of religious groups.

After accepting the legitimacy of Christian Horizons serving its own Christian community in providing support services to the public, the objective portion of the BFOQ analysis should have been undertaken in a manner deferential to its religious precepts, which would be consistent with the values underlying s.2(a) of the Charter. In simple terms, religious communities must be permitted to define their own foundational religious tenets, and then require buy-in from its members, as evidenced by their lifestyle choices. Doing otherwise allows state intrusion into determining the validity of religious belief and practice and jeopardizes true religious liberty.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.

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