Tierney Stauffer LLP Lawyers

The Ontario Human Rights Code prohibits discrimination based on an enumerated list of grounds. Discrimination can occur in a variety of settings, including in the workplace, against a wide variety of people, and the Code sets out the situations and circumstances which make discrimination a violation of one’s right to equality. However, it also provides some narrow exemptions to the discrimination laws, primarily aimed at religious institutions, which permit actions that would otherwise be deemed discriminatory, such as in hiring practices, or membership limitations. A recently filed employment law case is making headlines because it will seek to test the boundaries of this exemption after a pastor at a church in Mississauga was fired after coming out as transgender.

Pastor Fired After Coming Out as Transgender

Reverend Junia Joplin started as a pastor at Lorne Park Baptist Church in 2014. She had always been publicly progressive about many social issues, including LGBTQIA+ inclusion, with the support of the congregation and the church. Reverend Joplin previously identified as male, however in June of last year, while sermons were being held online due to the pandemic, she took the opportunity to come out to her congregation as transgender during a virtual service.

Though she initially felt supported both by some members of the church, she was soon placed on suspension with no set date to return. In the days that followed, she was asked to participate in a number of town hall sessions with congregants, where she was subjected to several deeply personal questions pertaining to her transition and the impact it could have on the church and its members. Soon after, the church asked congregants to vote on whether they believed the Reverend should be terminated. Of 111 members who voted, 58 opted to terminate, citing religious reasons for their decision. Reverend Joplin has since filed a statement of claim for wrongful dismissal.

Discrimination & The Human Rights Code

The provincial Human Rights Code protects people from discrimination, in employment and in other social areas, with respect to a list of personal factors, which include:

  • Race
  • Creed
  • Sexual orientation
  • Gender identity & expression
  • Family status
  • Citizenship

It is against the law for someone to be treated differently in a protected social area, which includes employment, due to any of the factors listed in the Code. However, there are limited exceptions. Relevant to this case, section 24(1)(a) of the Code specifies an exemption regarding employment in organizations dedicated to serving the needs of certain religious, educational, or social interests:

24 (1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(a)  a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;

However, this section specifically applies to discrimination based on the nature of the organization. In this case, the church is designed to cater to adherents of the Baptist faith, and so the church could legitimately discriminate when hiring a pastor who held different beliefs. However, Reverend Joplin argues that her gender identity is not a bona fide qualification of her role, and therefore should not be an exception to her human rights protections in this instance.

Of course, it could also be argued that gender-based discrimination is permitted in the hiring practices of certain religious organizations, as an extension of the beliefs of those faiths. For example, Catholic churches do not allow female-identifying people to be priests and the church is permitted to operate on that principle in Ontario. However, the church in this case appears to have maintained a progressive attitude towards members of the LGBTQIA+ community, and there does not appear to be a policy-based reason for discrimination in this instance.

Competing Rights Present a Challenge

When there are competing rights, for example, the right to freedom of religion, and the right of Reverend Joplin to be free from discrimination based on gender identity, there is often no easy solution. The provincial government has gone so far as to set out guidelines for organizations facing issues of competing rights, called the Policy on Competing Human Rights.

The policy guides organizations to treat all rights equally, and to look for solutions that allow both rights to coexist. In the absence of that possibility, organizations are asked to find the ‘next best’ solution. In many cases, however, such as the one at hand, an either/or situation is at stake. Either Reverend Joplin can continue her employment, or the church will be permitted to terminate her. The Policy encourages decision-makers to make decisions on a case-by-case basis, and consider all relevant factors. It will be interesting to see how the courts decide this matter should it reach the trial stage, to see how the church’s religious freedoms will be balanced with the Reverend’s human rights claim.

Contact Ottawa Employment Lawyers Tierney Stauffer LLP

The experienced lawyers at Tierney Stauffer LLP can help minimize your exposure to employer liability, and provide legal advice for various employment concerns including workplace safety, policy creation and implementation, and terminations. To discuss your legal matter with a member of our employment team, contact Tierney Stauffer LLP in Ottawa, Eastern Ontario and North Bay at 1-888-799-8057 or contact us online to schedule a confidential consultation.

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