Discrimination in Employment by Religious Organizations: Exemptions, Defences, and the Lockean Conception of Toleration

This paper considers the relationship between equaliy rights and the right to freedom of conscience and religion, in the context of employ- ment discrimination by religious organizations. The author points out that while some human rights statutes in Canada grant religious organ- izations an exemption from the prohibition against discrimination, oth- ers provide such organizations with access to a BFOR defence. She explains the importance of the distinction between these contrasting appraches, and discusses how courts and tribunals have interpreted and applied them. The paper also includes an overview of the "special case" of denominational schools in Canada, whose rights and privileges are specificall protected by the Constitution Act, 1867. The author then turns to a consideration of which of the two approaches - the BFOR defence or the exemption - is to be preferred. In this respect, she dis- agrees with Alvin Esau, who has argued (most recentl, in a paper pub- lished in this issue of the Journal) that only the exemption approach is capable of effectivel guaranteeing the exercise offreedom of religion. Rather basing her analysis on the model of separation of church and state set out in Locke's Letter Concerning Toleration, she contends that although the two approaches will often yield the same result in a given case, the BFOR defence approach is preferable, because it better pro- tects both equality rights and freedom of religion.