School Boards Can Discriminate on the Basis of Religion

By: Cédric P. Lamarche
In a recent article published in the Globe and Mail, Ciara Byrne discusses the impact of the growing gap between teaching positions and unemployed teachers in Ontario.
According to the article, in 2009 there were upwards of 12,200 new teachers in the province but only approximately 5,000 positions.  The increasing number of new teachers and the lack of positions have forced many unemployed teachers to cast a wider net in their employment search efforts.  The article, which is entitled “Jobless, non-religious teachers turn to Catholicism in attempt for employment”, focuses on non-catholic and non-practicing catholic teachers who are turning to the Catholic Board for opportunities.
In order to be employed by Catholic School Boards in Ontario, it is not a concealed fact that an individual must be Catholic.  There are no exceptions to this rule.  Applicants are often weeded out during the interview process on the basis of their religious beliefs and affiliations alone.  Where there may be doubt as to an applicant’s religious beliefs and affiliation, a letter signed by an authoritative figure from the Catholic Church may be required to confirm one’s faith.
The article amusingly discusses how many non-Catholic or non-practicing Catholic unemployed teachers are building “portfolios”, whether legitimately or illegitimately, to increase their work opportunities.
A common reaction to the “Catholic-only policy” is that this requirement is discriminatory and in direct violation of the rights protected under the Ontario Human Rights Code.  It is trite that an employer cannot refuse to hire someone on the basis of their religion or creed.
How then are Catholic School Boards getting away with this type of discriminatory conduct?
The Code specifically and expressly carves out an exception for school boards.  In fact, section 19 of the Code allows school boards, unlike all other employers, to use one’s faith as a criterion for employment.  Section 19 of the Code states that: “This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.”
This exception in the Code permitting the enforcement of the Catholic-only policy has previously been the object of legal challenges by individuals who were denied employment because they did not fit the Catholic bill.  However, the courts have unanimously agreed that the exception is constitutional and should remain.
In any other context, should a an applicant be turned down on the basis of religion, even if such a statement was not expressly made by a prospective employer, there would be a legitimate claim for the recovery of financial, psychological, emotional and/or punitive damages resulting from the discrimination.
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