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94 Chapter 3
it was ‘not likely’ that the presence of a gay assistant scout master in the
BSA ‘would be understood to send any message, either to Scouts or the
world’. 89 On the other hand, discrimination on the grounds of sexual
orientation has ‘caused serious and tangible harm’. 90
5.2 Canada
The Equality Court in Strydom is right not only to insist that the workrelated
discrimination should be justified on the basis of tenets of faith, but
also to distinguish between religious and non-religious activities, so that
only activities which are closely related to the religious convictions and
practices of the religious association are eligible for an exemption to antidiscrimination
legislation. The Court is correct that a typist's activities, like
those of a janitor in a gym, bear no significant relation to the group's
religious beliefs and practices. 91 But, although it was dealing with the
revocation of the membership of an individual rather than with workrelated
discrimination against a non-member (as in Strydom), the Supreme
Court's decision in Dale invites the question: Could not the position of a
teacher, even one not carrying out religious instruction, in a religious
school have arguable religious significance, since the pedagogical function
goes to the heart of a religious school's operations and ethos? Decisions of
the Canadian courts and boards of enquiry bear on this question.
In Canada, protection against unfair discrimination is provided by
equality provisions contained in the legislation of the various provinces,
with all provinces subject to the Canadian Charter of Rights and
Freedoms, which includes a right to equality. Although equality provisions
vary between provinces, most include the principle of non-discrimination,
but provide some form of occupational exemption, typically where there is
a bona fide occupational requirement. Canadian courts and boards of
enquiry have considered cases in which religious occupational requirements
may lead to discrimination on protected grounds, and have
88 never took any clear and unequivocal position on homosexuality’ (676) and that its
‘public posture’ was ‘welcoming of all classes of boys and young men’ (672). In
Strydom, by contrast, the claim of the church that it regarded homosexual activity as a
‘cardinal sin’ was uncontested. Stevens J asserted that ‘[to] prevail in asserting a right of
expressive association as a defence to a charge of violating an anti-discrimination law,
the organisation must at least show that it has adopted and advocated an unequivocal
position inconsistent with a position advocated or epitomised by the person whom the
organisation seeks to exclude’ (687). The Equality Court found that the church had
demonstrated at least this much.
89 Dale (n 80 above) 697.
90
Dale (n 80 above) 700.
91 See, for a decision reflecting this view, EEOC v Pacific Press Pub Assoc 676 F 2d 1272 (9th
Cir, 1992). (The US Court of Appeals for the Ninth Circuit held a non-profit publishing
house associated with the Seventh-Day Adventist Church liable for gender
discrimination on the grounds that the complainant's duties as a typist were remote
from the core of the operations of the religious organisation.) For a discussion of this
and related decisions, see MA Hamilton God vs the gavel: Religion and the rule of law
(2005) 173 - 199.