The Justifiability of Biblically Based Discrimination: Can Private Christian Schools Legally Refuse to Employ Gay Teachers?

Hilary M.G. Paterson

ABSTRACT

Human rights codes generally permit employers to discriminate on the basis of otherwise prohibited grounds if they can demonstrate that the discrimination is rooted in a bona fide occupational requirement (BFOR). The right of religious schools to require adherence to religious mores has been confirmed in certain contexts. However, situations involving discrimination on the basis of sexual orientation raise more contentious issues. The Supreme Court of Canada's ruling in Vriend v. Alberta does not explicitly prevent religious schools from discriminating against lesbians and gay men. Rather, it recognizes the right of Albertans to have complaints of discrimination based on sexual orientation investigated. The issue of whether religious schools can legitimately refuse to employ lesbians and gay men thus remains unresolved. Despite the fact that existing case law regarding BFORs for religious schools suggests that King's College's actions were justifiable, a closer examination of the competing interests at play, taken in conjunction with recent judicial developments relating to both s. 15 of the Charter and the BFOR analysis, reveals that this may no longer be true. In this article the author suggests that it is now conceivable that, in the Vriend context, a combination of the principles of proportionality and accommodation dictate that the interest in preventing discrimination on the basis of sexual orientation may well prevail over the protection of religious freedom.

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Citation: (2001) 59(2) U.T. Fac. L. Rev 253.
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