Heintz v. Christian Horizons
The Divisional Court has rejected the argument that refraining from same-sex relationships is a bona fide occupational qualification for support workers of a community living residence.
In March 1995, Connie Heintz, a devout Christian Mennonite, was hired as a support worker at a community living residence operated by Christian Horizons in Waterloo, Ontario. The duties of support workers, who care for individuals who have developmental disabilities in a residential group home environment, include cooking, cleaning, doing laundry, and helping residents to eat, wash and toilet.
Christian Horizons, which self-identifies as an Evangelical Christian ministry, is a not-for-profit corporation with a membership and a Board of Directors. It operates over 180 residential homes across Ontario. These residential programs are fully funded by the Ontario Ministry of Community and Social Services. Christian Horizons receives approximately $75 million annually from the government, employs over 2500 persons across Ontario and provides services and support to approximately 1400 individuals with developmental disabilities.
Members of Christian Horizons are required to adopt a Doctrinal Statement and a Lifestyle and Morality Statement. Employees are also required to sign the Statements as part of their contract of employment. The Lifestyle and Morality Statement prohibits homosexual relationships, as Christian Horizon views homosexuality as unnatural, immoral and contrary to the scriptures.
A few years after she started working for Christian Horizons, Heintz realized that she was a lesbian. She was forced to resign in 2000 for failing to comply with the Lifestyle and Morality Statement.
The decision of the Human Rights Tribunal
Heintz filed a human rights complaint, alleging that she had effectively been terminated from employment because of her sexual orientation, contrary to s. 5 of the Human Rights Code which prohibits discrimination in employment on the basis of certain proscribed grounds, including sexual orientation. The complaint was referred to the Human Rights Tribunal for a hearing.
Christian Horizons argued that it was not bound by the non-discrimination provisions of the Code because it fell within the “special employment” exemption in s. 24(1)(a) of the Code, which provides that the right to equal treatment under s. 5 of the Code is not infringed where a religious organization is primarily engaged in serving the interests of persons identified by ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.
The Tribunal held that, while Christian Horizons was a religious organization, it could not claim the exemption offered by s. 24(1)(a) because it was not primarily engaged in serving the interests of persons who are “similarly identified – i.e. persons who are adherents to its Doctrinal and Lifestyle and Morality Statements, or indeed, in serving the interests of Christians more generally. Rather, the primary object and mission of Christian Horizons was to provide care and support for individuals who have developmental disabilities, without regard to their creed.
The Tribunal further held that, even if the evidence had shown that Christian Horizons was primarily engaged in serving the interests of persons of the same creed, the Tribunal would nevertheless have held that Christian Horizons did not meet the final element in s. 24(1)(a) – i.e. that the qualification was reasonable and bona fide in light of the nature of the employment.
While the Tribunal accepted that Christian Horizons sincerely and honestly believed the requirement to adhere to the Doctrinal and Lifestyle Statements was necessary for the performance of employment, it did not accept that the qualification was objectively appropriate or reasonably necessary to the performance of a support worker position.
Turning to the question of whether Christian Horizons had discriminated against Heintz on the basis of sexual orientation, the Tribunal found that Christian Horizons and some of Heintz’s co-workers had poisoned her work environment after discovering that she was a lesbian. For example, one of her co-workers started rumours that Heintz had harassed and abused her, had abused a resident, was using a computer in the residence to view gay and child pornography and was misusing the organizations funds (allegations the Tribunal held were “dubious”). Christian Horizons did nothing to address the discriminatory attitudes of other employees. On the contrary, it relied on them in its performance review of Heintz. Moreover, it offered her spiritual counselling aimed at effecting “restoration”, an offer the Tribunal held was “profoundly disrespectful and oppressive”.
The Tribunal concluded that Christian Horizons had completely failed to deal with Heintz consistent with an employer’s obligation under the Code (obligations that exist whether or not an employer is entitled to a s. 24 exemption). The Tribunal ordered Christian Horizons to pay Heintz $23,000 in general damages, as well as special damages for lost wages and benefits for an18 month period.
The decision of the Ontario Divisional Court
Christian Horizons appealed the Tribunal’s decision to the Ontario Divisional Court. On May 14, 2010, the Court allowed the appeal, but only in part.
The Divisional Court did not agree with the Tribunal’s approach to the interpretation of the second requirement in s. 24(1)(a) – namely, that Christian Horizons demonstrate that it is a “religious … organization that is primarily engaged in serving the interests of persons identified by their … creed, or gives preference in employment to, persons similarly identified”.
Relying on the French version of s. 24(1)(a), the Court held that “the proper approach to the interpretation of the section is to focus on the subjective purpose of the group”. The Court rejected the Tribunal’s conclusion that, because Christian Horizons is fully engaged in the public life of the province, it cannot be seen as primarily serving Christian interests within the meaning of s. 24(1)(a). The Court agreed with Christian Horizons that:
If the Tribunal is correct, religious organizations like Christian Horizons or a religious group offering to feed the hungry will be unable to rely on s. 24(1)(a) if they minister to individuals regardless of their religious beliefs. Such an organization could not require even its senior officers, who constitute the organization’s directing mind, to be adherents to its religious beliefs. They submit that the Legislature could not have intended to put out of business religious organizations that minister to the disadvantaged as an expression of their religious faith.
The Court also held that the Tribunal had failed to consider the impact its interpretation of this aspect of s. 24(1)(a) would have “on the rights and freedoms of members of religious organizations, despite the guarantee of freedom of religion in s. 2(a) of the Charter.” It explained:
Subsection 24(1)(a) seeks to balance the rights of certain groups against equality rights. An approach to s. 24(1)(a) that takes into account, in the determination of the primary activity of a religious organization, the perspective and purpose of the organization is consistent with the guarantee of freedom of religion. At the same time, the BFOQ requirement found in s. 24(1)(a) upholds the important Charter protection for equality rights.
The Court expressed concern that the members of Christian Horizons (as opposed to its employees) perform charitable work “as an exercise of their religious beliefs and values. The Tribunal’s interpretation of s. 24(1)(a) would have the effect of severely restricting the manner in which that religious activity will be carried out, as the Tribunal’s interpretation would require them to confine their charitable work to members of their faith group, when they see their religious mandate as to serve all of the needy without discrimination.”
Since Christian Horizons was operating its group homes for religious reasons, the Court held that it was primarily engaged in serving the interests of persons identified by their creed, with resultant benefits to individuals with developmental disabilities who live in their group homes and the families of those residents. Accordingly, Christian Horizons met this aspect of the s. 24(1)(a) test.
However, the Court agreed with the Tribunal that Christian Horizons had failed to demonstrate that the requirement to refrain from same sex relationships was a bona fide occupational qualification for support worker employees.
Like the Tribunal, the Court noted that a close examination of the nature of employment (i.e. the employees’ actual duties, functions, activities and the abilities of the employee to perform the job) is critical to determining whether a requirement constitutes a bona fide occupational qualification. “The employer must clearly demonstrate that the qualification in issue ‘is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.'” In this regard, it was not sufficient to consider only the religious organization and its mission:
A qualification of religious conformance is one that intuitively would generally not meet the objective criterion. As the Supreme Court of Canada said … : “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. [emphasis original]
The Court also noted that there was “no evidence that anyone, including Christian Horizons’ leadership, ever considered whether the prohibition on same sex relationships was necessary for the effective performance of the job of support worker in a home where there is no proselytizing and where residents are not required to be Evangelical Christians.” It concluded that a requirement to refrain from same sex relationships was not a valid bona fide occupational qualification for the job function of providing care and support to people with developmental disabilities:
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 an adherence by the support workers to a lifestyle that precludes same sex relationships. In fact, Ms. Heintz, herself, remains an Evangelical Christian, a follower of Christian Horizons’ ethos in every other way, and is committed and quite capable of performing the job functions of a support worker with the love and care that has typically characterized Christian Horizons’ service to people with developmental disabilities and with respect for the Christian activities in the homes.
The Court noted that the evidence demonstrated that “the ‘Christian environment’ that was provided in the homes by the support workers mainly manifested itself through prayer, hymn singing and Bible reading …There is no evidence that Ms. Heintz refused to participate in these activities.” It concluded:
It may be that from Christian Horizons’ perspective, the support worker’s job is of a religious nature, and it is therefore necessary that the support worker adhere to all aspects of the L & M Statement. However, from an objective perspective, the support workers are not actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity. There is nothing in the nature of the employment itself which would make it a necessary qualification of the job that support workers be prohibited from engaging in a same sex relationship. To some extent, the support workers maintain a general Christian culture in the home by engaging the residents in prayer and bible reading, but support workers are not hired or expected to bring the residents into the Evangelical Christian religion by having them adopt a certain lifestyle. The fact is that the support workers’ employment and the tasks they perform are not intended to infuse the residents of the homes that Christian Horizons serves with the lifestyle morals that Christian Horizons demands of its adherents.
The Court also held that it was reasonable for the Tribunal to have considered the practices of other organizations in its analysis “to see how other religious organizations balance rights and whether they impose qualifications of religious or morality conformance for all job functions or just for certain ones related to leadership.”
Finally, the Court upheld the Tribunal’s findings regarding the poisoned work environment to which Heintz had been subjected and held that Tribunal was correct in holding that this infringement of the Code was not subject to the s. 24(1)(a) exemption, even if the exemption had been found to protect Christian Horizons and the damage award.
Egale Canada Inc. intervened in the appeal before the Divisional Court in support of Connie Heintz and the Ontario Human Rights Commission.
Click here to read the Tribunal’s decision.
Click here to read the Divisional Court’s decision.