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Can an employer fire someone for being in a same-sex relationship? Add to ...

The question

I have a question regarding Canadian labour laws. I recently heard of a situation with a family friend who was employed as a teacher at a Christian elementary school. The school requires all teachers to be Christian, attend church regularly and abide by Christian moral behaviour. This one particular teacher came out as a lesbian and was fired immediately. Even though the school may have perceived this as “not abiding to Christian moral behaviour,” is it still legal for the school to fire her? The school is an organization in Ontario, which is a province that dictates that hiring and firing cannot be determined by sexual orientation. Who plays trump in this situation?

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The answer

Ontario and Canada are two of the most progressive and advanced jurisdictions in the world when it comes to human rights and equal treatment at work, especially with respect to sexual orientation. However, in law there are often exceptions. In Ontario, and some other provinces, educational institutions are allowed to impose discriminatory requirements on their employees, if they can establish that those requirements are necessary for employees to properly perform their jobs. When will this exception actually apply? A recent case provides some guidance.

In 1995 Connie Heintz took a job as a support worker at community living residence operated by Christian Horizons, an evangelical Christian organization which operates residential homes in Ontario for individuals with developmental disabilities. Christian Horizons only hired evangelical Christians to staff its programs

As part of its Lifestyle and Morality Statement, which is similar to a code of conduct, Christian Horizons expressly rejected homosexual relationships as being incompatible with “effective Christian counselling ideals, standards and values.” Ms. Heintz was aware of this when she started the job.

A few years later, two of Ms. Heintz’ co-workers discovered that she was in a same-sex relationship. When Ms. Heintz was asked whether this was true – she said it was. Because she was not in compliance with the Lifestyle and Morality Statement, Ms. Heintz was required to leave her job in the fall of 2000.

Ms. Heintz later filed a complaint at the Human Rights Tribunal of Ontario alleging that she was terminated because of her sexual orientation. In Ontario, the Human Rights Code states that every employee must be treated equally at work and that employers cannot treat individuals differently based on a set of protected grounds such as race, age, religious beliefs, and sexual orientation, among other personal characteristics. All other Canadian jurisdictions have similar legislation.

Christian Horizons disagreed with Ms. Heintz and argued that it fell within an exception to the general right not to discriminate at work: In Ontario, the Human Rights Code also provides that a religious or educational institution can implement requirements that discriminate against individuals who do not follow their religious beliefs, so long as that requirement is imposed in good faith and with the belief that it is necessary. The tribunal that initially heard the case disagreed with Christian Horizons and awarded Ms. Heintz damages for discrimination.

This finding was appealed and it was upheld by an Ontario appeal court that recently heard the case. In siding with Ms. Heintz, the appeal court found that Christian Horizons could not show that being in an opposite-sex relationship was necessary for Ms. Heintz to properly perform her job. There was nothing about the performance of her job tasks that required a lifestyle which precluded same-sex relationships.

Teachers, however, may be viewed much differently. Unlike at Christian Horizons, which is a community living residence, the teachers in a Christian school are expected to teach Christian ideals and religion is major part of the curriculum. Since teachers are viewed as having a moral influence on their students, a Christian school could argue, and probably establish, that being in an opposite-sex relationship is a necessary requirement of the job – in which case your friend will be out of luck.

Daniel Lublin is a workplace law expert and a partner at Whitten & Lublin. He writes on legal issues for Globe Careers.

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