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Taking diversity seriously: Religious associations and work-related discrimination 95
permitted religious associations to dismiss employees who have not
conformed to the religious lifestyle stipulated by the employer.
In Caldwell v St Thomas Aquinas High School, 92 a Catholic school refused
to renew the contract of a Catholic teacher after she married a divorced
Methodist man in a civil ceremony. Although the school would not have
objected to non-Catholic staff entering such a marriage, Mrs Caldwell's
contract was not renewed on the grounds that she was a Catholic and her
actions contravened the rules of the church concerning divorce. The basis
of her claim was unfair discrimination on the basis of marital status and
religion.
The school's argument was two-fold. First, it contended that section 8
of the British Columbia Human Rights Code (the anti-discrimination
provision) should not operate to protect Mrs Caldwell if it was found that
the non-renewal of her teaching contract resulted from her lacking a bona
fide qualification. The school argued that Mrs Caldwell lacked a bona fide
requirement for the job, as she was unwilling to observe the requirements
and practices of the church. This requirement, it claimed, was necessary
for upholding the religious nature of school, where teachers led pupils by
example. Secondly, the school claimed that the discrimination was
covered by section 22 of the Code, which exempts non-profit religious
organisations from the Code by permitting them to prefer in their
employment practices members of their religious group.
The Canadian Supreme Court found for the school on both counts. It
observed that the case implicated conflicting rights, ‘that of an individual
to freedom from discrimination in employment, and that of a religious
group to carry on its activities in the operation of its denominational school
according to its religious beliefs and practices’. 93 The Court held that the
dismissal of Mrs Caldwell was not a contravention of the Code; the school
was entitled to impose the faith requirement and could discriminate
against her on the basis of her failure to comply with the tenets of the
church. It found that ‘[t]he relationship of the teacher to the student
enables the teacher to form the mind and attitudes of the student' and that
there was nothing objectionable in the school's requiring teachers ‘to
observe and comply with the religious standards and to be examples in the
manner of their behaviour in the school so that students see in practice the
application of the principles of the church on a daily basis and thereby
receive what is called a Catholic education’. 94
Addressing the contention that the requirement of religious
conformity was not reasonably necessary to ensure the efficient
92 [1984] 2 SCR 603.
93
Caldwell (n 92 above) 606.
94 Caldwell (n 92 above) 618.