Ontario Human Rights Commission v. Christian Horizons¹

June 23, 2010

Introduction

The May 14, 2010 Christian Horizons decision confirms that Christian organizations may continue to restrict hiring and employment to Christians.  This is significant.  An unfortunate outcome of the decision is that it will take more work and diligence for Christian organizations to actually do so.  This is particularly the case if there are same-sex relationship prohibitions imposed on employees.  This article will consider how this decision affects Christian organizations’ job descriptions, hiring and employment practices and particularly the need to establish that restrictions or qualifications are reasonable and bona fide occupational requirements (BFOR).

A) Brief Case Summary

When Connie Heintz was hired by Christian Horizons in 1995 she agreed to Christian Horizons’ statement of faith and also agreed to abide by Christian Horizons’ Lifestyle and Morality Statement, which detailed required Christian conduct.  The Lifestyle and Morality Statement included a prohibition of same-sex relationships which became the focus of the tribunal hearings and court appeal.  Importantly, the Court decided that Christian Horizons was a Christian organization serving the interest of Christians when serving persons with disability.  However, it went on to decide that the prohibition against same-sex relationships was not a reasonable and bona fide occupational requirement for a support worker.  Consequently it was found that Christian Horizons had discriminated against Connie Heintz.  For a fuller analysis of the case see the Appendix.  This decision is applicable to charities headquartered or working in Ontario.  It is not binding on other provinces, but could be considered in similar situations.  Note that the public funding received by Christian Horizons was determined to be irrelevant, meaning this decision should apply equally to charities receiving public or private funds.

B) Can a Christian Organization Employ only Christians?

The short answer is yes, if the organization can establish that it is Christian, is serving the interests of Christians and that the qualification is a reasonable and bona fide qualification because of the nature of the employment. 

B1) Is the Christian organization serving the interests of Christians?

Equality in employment is the general rule.  This is not new.  As a rule employers are not allowed to discriminate in hiring on characteristics such as race, ancestry, place of origin, citizenship, colour, ethnic origin, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.  Employers can and should for example discriminate on terms of credentials, skills, and experience.

How is it possible to preferentially hire Christians?  The Human Rights Code states that equality in employment is not infringed if a religious institution or organization is primarily engaged in serving the interests of persons identified by their creed and employs only or gives preference in hiring to someone that is similarly identified.

This case is a reminder that:

• organizations must be clear on whether they are a Christian organization, what that means for them in terms of their doctrine or creed, and document it;
• organizations must be clear that they are serving the interests of similarly identified Christians, that this is important, and that they document it.  In other words, is the activity being carried out “seen by the group as fundamentally a religious activity”, and does the activity “further the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization?”²; and
• organizations must be able to find candidates who are qualified.  As with any employer, the practical hiring process is important.  For example:
  • communicate the employment qualifications needed, including adherence to a creed as expressed in a, for example, doctrinal or statement of faith and, if any, a Lifestyle and Morality Statement or other document addressing conduct requirements;
  • consider whether membership in a specific denomination, or group of denominations is a necessary criteria (e.g. making membership in the church’s denomination a requirement for a prospective pastor, or the denomination’s mission and outreach activities);
  • consider the appropriateness or usefulness of getting pastoral references; and
  • consider where or how will the organization find candidates of a similar creed, and target the search for candidates accordingly (e.g. word of mouth recommendations, posting positions in the denomination’s magazine or other sector specific publications).

B2) Can the organization prove being Christian is a BFOR?

“Connie Heintz agreed...that the goal of the programme was to show Christ to the individuals in the home in all things” [par 76].  This supported Christian Horizon’s position that serving people with disabilities was a religious activity.  However, being Christian and Christ-like was not enough to establish that restrictions on same-sex relationships was a BFOR for a support worker, however integral that restriction was to Christian Horizon’s understanding of Evangelical Christianity.

Christian organizations who wish to hire Christians exclusively or preferentially need to establish subjectively and objectively that this is a BFOR.  This is absolutely the case where there is a restriction on same-sex relationships.

a) The Subjective Test: Does the employer sincerely and honestly believe that the qualification is necessary for the performance of the job?  If yes, document why the charity’s leadership believes this.

b) The Objective Test: This is, as the Court states, “where the “rubber meets the road” in considering whether a valid BFO[R] defence has been made out”³.  The Court observes that “a qualification of religious conformance is one that intuitively would not meet the objective criteria...the qualification, to be valid, must not just flow automatically from the religious ethos of Christian Horizons.  It has to be tied directly and clearly to the execution and performance of the task or job in question”⁴.

To help establish the objective test employers should at a minimum have:

• evidence that leadership closely examined the nature and essential duties of the position and established why being Christian and why adherence to a Lifestyle and Morality Statement is necessary because of the nature of the employment;
• evidence restrictions on same sex relationships is necessary for the effective performance of the job.  Based on this case supporting evidence should include a requirement to actively convert or instill a belief in Evangelical Christianity.  These narrow criteria are a troubling part of this decision. The organization should be able to show that the employment and tasks are intended to infuse the organization’s services with the lifestyle morals that are demanded of its adherents⁵.

In finding Christian Horizons had not met the BFOR, the Court noted that Christian Horizons did not require support workers to proselytize and that residents were not required to be Evangelical Christians.  It was not enough that Christian Horizons’ staff “are required to exemplify Christ and show Christian love in all that they do and in all their actions with the residents of the homes”⁶.  This was because, according to the Court, “there is nothing about the performance of the tasks (cooking, cleaning, doing laundry, helping residents to eat, wash and use the bathroom, and taking them on outings and to appointments) that requires adherence by the support workers to a lifestyle that precludes same sex relationships”⁷.

c) BFOR Examples:  In light of this decision, charities can consider a number of options for establishing BFORs.

C) CCCC Certified Members

No changes to the CCCC standards are required as a result of this decision.  CCCC reminds Certified Members that their governing documents must include a Statement of Faith, affirmed on a regular basis by the directors, officers, and key staff as defined by the organization.  Each CCCC Certified Member has discretion to determine whether or not to adopt a lifestyle statement and the content of any such statement.

D) Final Comments

Minimally, this case requires Boards of Directors and leadership of all Christian charities to:

• review all job descriptions of staff in Ontario to determine to which positions a Lifestyle and Morality Statement should apply, if any, and, more importantly, why these positions require lifestyle restrictions.  There must be a clear connection between the role and the reasons for the restrictions.  Generally, this will include the necessity of tying specific job functions directly to a Christian lifestyle.  All of these decisions, with supporting reasons, must be documented in the minutes of meetings of the board, recognizing that those minutes will likely be put before a human rights tribunal in the event of a future human rights complaint.
• examine recruiting practices to reduce the risk of receiving a human rights complaint challenging the organization’s hiring process.
• consult with legal counsel to determine whether the charity has complied with the requirements of this case.

All of these obligations can be completed by staff, but they must be specifically reviewed, considered, adopted, and minuted by the Board of Directors.  Organizations should consider obtaining legal advice to ensure that any employment review or hiring process is conducted in a way that protects the organization without imposing potential liability risks.

At the CCCC Conference in Winnipeg September 28 to 30, 2010, Adrian Miedema, counsel to Christian Horizons throughout this litigation, will present a Human Rights Update.  This workshop will provide a review of recent human rights cases affecting charities, including this case.  Consideration will be given to whether, and in what circumstances, charities are allowed to hire only practicing Christians.  Practical guidance will be provided for preparing and enforcing statements of faith and codes of conduct in this era of increased scrutiny by human rights commissions, adjudicators, and media.

Appendix

Ontario Human Rights Commission v. Christian Horizons

History

CCCC previously issued a short, fact-based news release regarding this decision, available at: http://www.cccc.org/news_release/98.

As the appeal period has expired, with no further appeal initiated by any party, CCCC can now provide an analysis of how the reasoning of the panel of judges of the Divisional Court will or may impact Christian charities going forward.  The decision of the Human Rights Tribunal of Ontario, upon which this appeal is based, is available at: http://www.canlii.org/en/on/onhrt/doc/2008/2008hrto22/2008hrto22.html.

The appeal decision of the Divisional Court is available at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc2105/2010onsc2105.html.

Christian Horizons’ Success

With this appeal Christian Horizons was successful in the following ways:

• Christian Horizons was found to be a religious organization.

• Christian Horizons was found to be primarily engaged in serving the interests of Christians.  This significant finding allows Christian organizations ministering to the public to continue to require some or all employees to sign a Statement of Faith, if the organization can prove that its activity is “seen by the group as fundamentally a religious activity” and further[s] the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization”.

• Section 24(1)(a) of the Ontario Human Rights Code, the exemption section at issue, permits a religious organization to require an employee to sign a statement imposing restrictions on lifestyle, if the organization is able to prove the:
  1. organization is a religious organization;
  2. organization is primarily engaged in serving the interests of person identified by adherence to the religion in question; and
  3. lifestyle restriction is reasonable and bona fide given the nature of the employment.  The bona fide occupational requirement will be extensively discussed in this analysis.
  
  The Human Rights Tribunal of Ontario originally decided Christian Horizons was a religious organization, but not primarily engaged in serving the interests of Christians because Christian Horizons served the public.  The appeal court overturned this finding.  Now, as a result of the decision of the appeal court, Christian organizations are not prohibited from hiring only Christian workers, simply because those organizations serve the public.  However, even if an organization is religious and primarily engaged in serving the interests of Christians, the legal analysis of the appeal court in considering the third factor, above, the bona fide occupational requirement, may limit the types of employees whom the organization requires to sign a lifestyle statement.
  
  The appeal court found that the requirement to abstain from homosexual relationships was not reasonable and bona fide.  So, Christian Horizons was not permitted to require employees to abstain from homosexual relationships.  The decision will provide a precedent for future cases specifically relating to homosexual relationships.  There is concern the decision could be applied to the other rights protected by the Ontario Human Rights Code, such as:  marital status (for example, common law relationships) and family status (for example, having a child out of marriage).
• The Tribunal imposed several public interest remedies, such as the requirement for all  Christian Horizons’ employment policies to be reviewed in consultation with the Ontario Human Rights Commission with input from Connie Heintz.  The appeal court overturned this obligation.  Eliminating this consultation does not mean this penalty cannot be ordered in future cases.  However, the absence of this penalty reduces the probability of this process being ordered in every future case of this type.
  
  All of the public interest remedies were either eliminated or amended for being overreaching or overbroad.  The only remaining public interest remedies are the requirements to develop policies for anti-discrimination and anti-harassment and to provide sexual orientation training.  The public interest remedies ordered by the Human Rights Tribunal of Ontario are contained in Paragraphs 2 through 7 of the Order on Pages 86 through 88 of the Tribunal decision.  The amendments to those orders are contained in Paragraphs 117 through 120 of the appeal decision.

Bona Fide Occupational Requirement (BFOR)

Considerable prior litigation has interpreted how to meet a BFOR test.  Organizations can no longer require every employee to automatically sign a Lifestyle and Morality Statement.  Whether an organization can require employees to sign a Lifestyle and Morality Statement, must be determined on a job-by-job basis.

Christian Horizons was required to show both subjective and objective appropriateness of the restriction placed on Connie Heintz.  The court considered whether the requirement to abstain from participation in homosexual relationships was necessary to perform the job of support worker?  The court decided no.

Subjective Test:  The subjective aspect of the test required Christian Horizons to show that the restriction was imposed honestly, in good faith, and in the sincerely held belief that the limitation imposed is in the interest of 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 Human Rights Code.  The court determined that, because Christian Horizons sincerely and honestly believed that abstinence from homosexual activity was necessary for the performance of the role of support worker, Christian Horizons satisfied the subjective aspect of the BFOR test. 

Objective Test:  The objective aspect of the test required Christian Horizons to show that the restriction is related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to ensure the efficient and economical performance of the job without endangering the employee, fellow employees, and the general public.  In considering whether the objective test has been satisfied, a close examination of the nature of the employment is critical.  This examination requires the employer to assess the actual duties, functions, activities, and abilities of the employee in order to justify the restriction.  A quote directly from the decision is instructive:

“A qualification of religious conformance is one that intuitively would generally not meet the objective criterion.  As the Supreme Court of Canada said in Caldwell v. Stuart . . . ‘it will be only in rare circumstances that such a factor as religious conformance can pass the test of bona fide qualification.’  The qualification, to be valid, must not just flow automatically from the religious ethos of Christian Horizons.  It has to be tied directly and clearly to the execution and performance of the task or job in question.  A focus that is only on the religious organization and its mission, without regard to how it is manifested in the particular job in issue, would deprive the final element of s. 24(1)(a) of the Code of any meaning.”⁸

Thus the court indicates that religious adherence alone will not be regarded as sufficient to meet the objective test.  Employment duties must be tied directly to the restriction.  The court identified the tasks performed by support workers as typical domestic activities:  cooking, cleaning, laundry, feeding, washing, grooming, and providing transportation, etc.  None of these duties were found to require abstinence from same-sex relationships. 

Requirement to Evangelize:  In the BFOR analysis, the court appears to focus on evangelism as the primary motivation of a Christian lifestyle.  Whereas many Christians consider a Christian lifestyle, itself, as evangelism, the court appears to regard evangelism as only the overt action in pursuit of conversion.  The court determined that because there was no requirement for staff to evangelize and indoctrinate residents to the Christian faith, there was no necessity to promote an Evangelical Christian way of life.  The court does not appear to regard performing acts of mercy as exhibiting a Christian lifestyle.

Determination of Religious Allegiance:  Also in the BFOR analysis, the court very clearly states that no one other than the individual in question has the right to determine to which faith she adheres.  Connie Heintz described herself in testimony as both an Evangelical Christian and a lesbian.  The court accepted both statements.  This view is consistent with prior case law indicating that courts will not involve themselves in disputes as to qualification for religious allegiance.  If an individual believes himself or herself to be an adherent of a particular religion, courts will not challenge that belief.

Further Appeal

The right to appeal further rested with any of the three parties, the Ontario Human Rights Commission, Connie Heintz, or Christian Horizons.  None of the four intervenors had appeal rights.  The next level of appeal would have been to the Ontario Court of Appeal.  Thereafter, to the Supreme Court of Canada.  Each of these appeals would have required a two-step process.  First, permission of the court would have been sought to hear the appeal.  This is called granting leave to appeal.  Obtaining leave is never automatic.  Many more cases are refused than granted leave.  If refused leave, the case ends there.  If granted leave, the second step is to argue the appeal in an attempt to have the judges overturn the prior decision.  Both steps are required for each of the Ontario Court of Appeal and Supreme Court of Canada.

If Christian Horizons v. Heintz had been successfully appealed to the Supreme Court of Canada, a final, comprehensive pronouncement of the meaning of a BFOR may have been obtained.  Additionally, because the arguments in support of the freedoms of religion and association were not introduced sufficiently early in the process for the court to give full consideration to these issues, further appeal may have permitted exploration of these issues.

But, there would also have been risks in proceeding further.  Appellant courts have full rights to reconsider all the prior findings subject to appeal.  Every appeal provides an opportunity to confuse, rather than clarify, issues.  No guarantees could be assumed that the advances made at this level would not be jeopardized or lost entirely.  Legal costs would be substantial.  The appeal period has expired and no party appealed this decision.

Changes to Human Rights Litigation

After this case was initiated, a major reorganization of the human rights litigation process was implemented in Ontario.  Participants in disputes involving a breach of the Ontario Human Rights Code no longer have full rights of appeal to court.  A participant in a case with the Human Rights Tribunal of Ontario can ask for a decision to be reconsidered, but that reconsideration will be conducted by the tribunal, not by a court.  Generally, any decision made by the Human Rights Tribunal of Ontario may be challenged in court only where the decision was patently unreasonable, which means obviously wrong.

This narrow ground for overturning Tribunal decisions is very difficult to meet.  Because of this, decisions of the Human Rights Tribunal of Ontario will be much more difficult to overturn.  Consequently, these decisions should, for practical purposes, generally be considered final without appeal.  In the effective absence of appeal rights, charities should exercise considerable caution when making determinations with respect to the issues addressed in this decision.

Under the new regime penalties for breaching the Ontario Human Rights Code, although very rare, have also increased to a maximum fine of $25,000.  This is in addition to unlimited damages, as were assessed in the Christian Horizons case, and costs.  The Human Rights Tribunal of Ontario has retained wide discretion to impose public interest remedies (such as training of employees) on any party in order to promote compliance with the Human Rights Code.

¹ Ontario Human Rights Commission v. Christian Horizons (2010), ONSC 2105. [hereinafter Christian Horizons].

² Ibid. at paragraph 73.

³ Ibid. at paragraph 89.

⁴ Ibid. at paragraph 90.

⁵ Ibid. at paragraph105.

⁶ Ibid. at paragraph 99.

⁷ Ibid. at paragraph 104.

⁸ Ibid. at paragraph 90.