Image: www.christian-horizons.org/

When a support worker at an evangelical Christian organization that runs homes for persons with developmental disabilities entered a same-sex relationship, the organization found the worker had breached its “Lifestyle and Morality Statement,” which prohibited homosexual relationships. The organization, Christian Horizons, eventually terminated the employee on that ground, and the worker complained of discrimination to the Ontario Human Rights Tribunal.

In 2008, the tribunal found Christian Horizons discriminated against the worker, Connie Heintz, and ordered the organization to eliminate its Lifestyle and Morality Statement, develop anti-discrimination and anti-harassment policies, train all employees and managers on the policies, and review its employment policies to ensure that it was in compliance with the Ontario Human Rights Code. The tribunal also awarded Heintz lost wages, general damages for the application of the discriminatory employment policy, general damages for the poisoned work environment, damages for the wilful and reckless infliction of mental anguish, and pre- and post-judgment interest.

However, on appeal in 2010, Ontario’s Divisional Court found the tribunal misinterpreted the Code’s bona fide occupational qualification exemption (section 24(1)(a)). That section reads:

The right under section 5 to equal treatment with respect to employment is not infringed where 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.

The court found the qualification to sign the Lifestyle and Morality Statement, and thereby to live life according to the organization’s evangelical principles, requires a subjective and objective assessment. The Supreme Court of Canada wrote in Ontario (Human Rights Commission) v. Etobicoke (Borough), (1982):

To be a bona fide occupational qualification and requirement, a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

The Divisional Court found that Christian Horizons passed the subjective assessment: “There was no question that religious commitment is seen by the organization as fundamental to both its approach to service delivery and to the carrying out of the job responsibilities.” The organization sincerely and honestly believed the qualification was necessary for the support workers to perform their job.

The objective test was more difficult to satisfy. Essentially, the court found that the organization had not assessed whether it was truly necessary for workers to refrain from same-sex relationships in order to perform their duties. Accordingly, the court concluded that Christian Horizons had discriminated against Heintz on the basis of her sexual orientation, contrary to the Code.

The court upheld the tribunal’s monetary awards to Heintz, but found the tribunal’s initial public interest remedies were overbroad. The organization’s offence was related to discrimination based on sexual orientation, and this was the area that required a remedy. Therefore, the court:

• Allowed the organization to continue to require employees to sign its Lifestyle and Morality Statement but exclude the prohibition against same-sex relationships
• Modified the requirements with respect to policy development and training to refer only to discrimination and harassment based on sexual orientation
• Removed the requirement to review all employment policies in consultation with the Ontario Human RIghts Commission and receive approval from the commission and Heintz

Now, Christian Horizons and the Human Rights Commission have reached a new “partnership initiative to enhance diversity within the Christian Horizons workforce.” The organization has agreed to open its hiring to non-Christian support workers and program managers, and is undertaking an evaluation of its employment policies and procedures “to ensure best practices in accordance with the values and principles set out in the Ontario Human Rights Code.”

There are few details about the agreement—how or why it was reached—and neither party is adding much to the public news release, but Christian Horizons’ chief executive did say, “We seek to be fully in step with our partners in human rights. It’s a very good thing and I’m glad to be where we are at.” The public statement suggests that a more diverse workforce will better allow the organization to serve its increasingly diverse clientele. This is surely a positive advance from one of the largest providers of support services to developmentally disabled persons in Ontario—and one largely supported by public funds.

Adam Gorley
First Reference Human Resources and Compliance Editor