By: Eric Turkienicz, B.A. Hons., J.D.
A story out of the Quebec Human Rights Commission from last month raises some tricky questions about an issue which is infrequently examined in Canadian jurisprudence: what to do when two protected grounds of human rights come into conflict with one another. The case concerned a Jewish hair salon owner who mandated that Jewish employees of hers could not work on Saturday, the Jewish day of rest. One of the Jewish employees was later terminated under controversial circumstances. That employee lodged a complaint with the Quebec Human Rights Commission which then recommended that the owner compensate the employee for the discrimination, failing which the matter could go before the provincial Human Rights Tribunal for adjudication. The matter was covered in the media and a concise summary can be found here:
While the various news reports on the story do not go into great detail regarding the legal issues at play, it is not difficult to predict what would be argued should it proceed to the tribunal. Much like in Ontario, Quebec employees have the right to be free from discrimination in the workplace on the basis of religion. Here, the fact that Jewish employees had conditions placed upon them which other employees of different creeds did not – namely, days on which they were permitted to work – was clearly discriminatory. If the matter was that simple a tribunal decision against the employer would be a foregone conclusion.
A Religious Perspective
However, this particular situation poses a wrinkle in the normal analysis. According to Dr. Rachael Turkienicz, a Toronto biblical scholar with a P.H.D. in Talmudic and Midrashic Studies (and, full disclosure, my aunt), in Judaism, Jewish employers are not allowed to benefit from work done by employees on the Sabbath or any other holy day. A strict interpretation of this rule, therefore, would then result in no discrimination at all since the salon ought therefore to be closed to all workers on Jewish holy days. However, the employer may argue, as was likely the case, that her interpretation of this rule was that she did not want to benefit from Jewish employees working on the Sabbath since they are already forbidden to do so under the Jewish religion. The discrimination itself could be argued to be an expression of her own religious beliefs. If the employer in this case claims that she was following her own beliefs in setting the rules, the Tribunal will likely have a harder time determining which right wins – the right to be free from discrimination based on religion or the right to exercise one’s own. Most peculiar is the fact that the religion is the same on either side.
The “Correctness” of Religion
Conflicting human rights situations are not novel to Canadian law but neither are they terribly common. One reason may be the inherent difficulty in any human rights tribunal rendering judgment on the “correctness” of one’s expression or experience of religion. Consider the following hypothetical examples:
- A Christian employer who asks that a homosexual employee not bring their partner on a company retreat
- A member of the clergy of a liberal church who is stripped of her position for living with her partner while unmarried, despite no formal church doctrine forbidding such conduct
- An atheist employer who asks that Muslim employees leave the premises when it is time to pray
Discrimination at the hands of someone expressing a deeply held religious belief is complicated. It is impossible for an adjudicating body to point to any one dogmatic text for a particular creed and say “Here. This is the proper way to interpret and practice your religion”; an individual’s choice in how they express their particular religious beliefs is not easy to question. Indeed, the Courts have specifically commented on the situation. In Syndicat Northcrest v. Amselem  2 SCR 551, a famous Supreme Court case out of Quebec, the Court commented (at par. 50):
In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.
So long as the belief is sincere, the Court writes, there should be no assessment of the validity or propriety of that belief or the practice which expresses it.
Of course, this does not mean that Courts or other deciding bodies cannot render decisions when a conflict arises from a sincere religious practice, only that the practice itself cannot be discarded as inherently unjustifiable. Amselem also reminds us that no right is absolute and “[c]onduct which would potentially cause harm to or interference with the rights of others would not automatically be protected” (at par. 62). There is always a balancing to be conducted.
Finding the Balance
The Ontario case of Heintz v. Christian Horizons, 2008 HRTO 22 illustrates the issue. In that case, a homosexual employee was fired from a not-for-profit evangelical organization which ran a residential home. The termination was inspired by the employee’s sexual orientation, along with her refusal to sign a “morality statement” provided to her by the organization. Christian Horizons claimed, among other things, that its status as a religious institution insulated it from allegations of discrimination under an exemption contained in the Ontario Human Rights Code.
Although the Tribunal found that Christian Horizons’ religious status and right to its beliefs was beyond question, per Amselem, it denied the exemption. Since the nature of the organization was provision of residential facilities and since the employee’s sexuality and signature on a morality statement was not a “reasonable and bona fide qualification” of the of employment, Christian Horizons could not utilize the statutory exemption. Furthermore, even with the exemption, which allows an employer to place certain restrictions or preferences on certain employees, employers are still required to ensure that there is a workplace free from harassment and other discrimination. Sincere beliefs notwithstanding, “[g]ays and lesbians are entitled to be treated by their employers, even where those employers may be religious organizations, with respect and dignity” (at par. 209).
The hair salon in question in the Quebec case is not a religious institution and its employees are not fulfilling religious functions. Although the Quebec tribunal is not bound by Christian Horizons, being an Ontario decision, the governing human rights acts for each province are worded similarly on this topic. Supposing the reasoning in Ontario is followed in Quebec, it is clear that an employer cannot treat a Jewish employee differently on the basis of his or her religion, even when the employer’s own Jewish beliefs may dictate they do so.
Finally, and while admittedly straying from the principle of not inquiring into the “accuracy” of a religious belief, the very tenets of the Jewish religion (a religion steeped in religious legal analysis and re-analysis) may provide an interesting ‘solution’ for this conflict. Per Dr. Turkienicz, the Jewish religion has a concept whereby “the law of the land is the law in every aspect except if it tells you to break the laws of the Torah”. Discrimination is contrary to the laws of the province, and since, according to Dr. Turkienicz, “providing opportunity is not the same as active transgression” and the employer is not making the employee work, it may well be that Jewish law actually requires the employer to refrain from any discrimination. Once again, it is important to note that scholarly interpretations of religious rules are disregarded by the Courts in favour of relying only on whether there is a sincere belief of the participants in their own religious practices, and rightly so.
For another interesting legal viewpoint on this same case, I encourage readers to look at the following post by Shaun Bernstein at Stancer Gossin Rose LLP:
Eric Turkienicz is a lawyer practicing at the Toronto firm of Feldman Lawyers. He maintains a broad civil and commercial litigation practice. The opinions contained herein are his own and do not necessarily reflect the opinions of other members of Feldman Lawyers. Nothing in this article should be taken as legal advice and it is for information purposes only. Any questions or comments on the article should be made directly to the author.