Islands of Exclusivity Revisited: Religious Organizations, Employment Discrimination and Heintz v. Christian Horizons

In Heintz v. Christian Horizons, the Ontario Human Rights Tribunal upheld an employment discrimination claim against an evan- gelical Christian organization that operated community living homes for the developmentally disabled, providing services not ony to co-religion- ists but also to the general public. The Tribunal concluded that in light of its activity in the public arena, Christian Horizons did not qualify under Ontario's Human Rights Code as a "special employer" entitled to an exception from the prohibition against discrimination and that, in any event, conformity with afaith-based moral code imposed by the organi- zation on its employees was not a BFOR. The effect of this ruling, the author notes, is that Christian Horizons was precluded from hiring or firing employees for any positions whatsoever based on prohibited grounds (in this case, sexual orientation), nor could the organization impose a moral code on any employee if the code discriminated on such grounds. The author is strongly critical of the Tribunal's decision, argu- ing that it took an unduly narrow approach to the "special employer" exception - one that denies to religious organizations "equal space" with other service providers operating in the public square. He also con- tends that, by rejecting conformity with the organization's moral code as a BFOR, even for managerial or higher ministerial positions, the Tribunal simply acted on a value choice that the right not to be discrim- inated against should trump the right to religious freedom. In the author's view, that value choice is evident in the way the Tribunal delinked the nature of the employment from the employment itself, and adopted a purely "instrumental" (as opposed to "organic ") understand- ing of the complainant's job duties. The author goes on to argue that Professor of Law, University of Manitoba. This paper was prepared on the invi- tation of the Canadian Constitutional Foundation for its Conference on "Race, Religion, Equality and Freedom," held in Toronto in October 2009. My thanks to lain Benson, Craig Jones, and Andrew Lokan for comments, although it should be noted that they do not necessarily agree with what I say in this paper.