Universities Canada bills itself as “the voice of Canadian universities,” but later this month it will vote on a new bylaw and policy to silence the individual voices of some of its 97 members. The current non-discrimination policy, which mirrors provincial Human Rights Codes in prohibiting discrimination on specified grounds, is to be amended to remove the protection found in every one of those codes for employment decisions by religious institutions that protect their core religious character.
The example that Universities Canada uses in an online FAQ explaining the new policy says that a faith-based university will be able to continue to hire based on the faith of applicants, but it will not be able to “require a candidate to be never-divorced as a bona fide occupational requirement, as this would be discriminating on the protected ground of marital status.”
This is a curious example because it is almost exactly the facts of Caldwell v. Stuart, the leading Supreme Court of Canada case on what constitutes a bona fide occupational qualification for religious schools. In Caldwell, a Roman Catholic high school did not renew an annual teaching contract when it learned that the teacher had married a divorced man in a civil ceremony contrary to canon law.
The Supreme Court unanimously affirmed the right of the school to require of its faculty not merely on a notional belief in the Catholic faith, but actual fidelity to church doctrine. As the Court put it, “having in mind the special nature and objectives of the school, the requirement of religious conformance including the acceptance and observance of the Church’s rules regarding marriage is reasonably necessary to assure the achievement of the objects of the school.”
The Caldwell decision recognized an important truth about human rights: that exceptions to anti-discrimination laws are themselves integral to those laws. Without these exceptions, core associational rights and the freedom of religion would quickly be swept aside. There is no way, for example, that a religious institution can retain its religious character unless it can exercise control over its membership and over the people who carry out its mission. That is why every Canadian human rights code contains such exceptions.
Universities Canada’s approach to human rights is not so tolerant. Contrary to the well-established principle that there is no hierarchy of rights, Universities Canada is singling out freedom of religion and demoting it to second-class status, below all the other protected classes. To enforce this new two-tier system of rights, they are using the threat of expulsion — and the loss of funding, access to scholarships, and the reputational benefits that come with membership in the only national body representing Canada’s universities.
Just how much this deviates from current Canadian human rights law can be seen from what Universities Canada is demanding of its members. A university, they write, “will not use any exemptions for bona fide occupational requirements in an employment relationship … whether or not such exemptions would otherwise be permitted under Applicable Human Rights law.” (emphasis added). In other words, they are telling their religiously-affiliated members: you must give up your employment rights and legal protections, even those expressly affirmed by the Supreme Court, or get out.
As a private organization, Universities Canada is free to compel its members to give up their legal rights as a condition of membership. Freedom of association includes the right not to associate, and that applies to Universities Canada as much as to its member universities. But there are serious questions about how truly private Universities Canada is, as a quarter of its budget comes from the federal government. And, given how much power Universities Canada has, expulsion comes with a heavy price.
Canada’s human rights codes are characterized by a delicate internal balancing of rights, endorsed by successive provincial and federal governments and upheld by the Supreme Court. If Universities Canada wants to upset that balance and strip its faith-based members of their statutory employment protections as a condition of continued membership, then the Government of Canada should reconsider its own association with Universities Canada.
Update: Universities Canada later changed the text of its bylaw to read: “the institution will not impose any occupational requirements in an employment relationship that would have the effect of discriminating on Protected Grounds, unless such requirements are bona fide occupational requirements that are permitted under applicable human rights law.”
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