Religious Freedom

"Tell me, are you a Christian Child?" I said, "Ma’am I am tonight". The senseless shooting of Marc Cohn recently, causes me to think of that line from Walking in Memphis. Maybe Muriel, down at the Hollywood, can ask that question, but what about the employer in Edmonton? Such questions raise the interesting debate on the freedom of religion versus the freedom from discrimination on the basis of religion. Is an employer free to voice religious opinions? Is an employer free to require workers to have certain religious values?

There is often a desire to view issues of religion, and the other well known grounds under Human Rights legislation, as off limits in the workplace. Indeed, most of us are familiar with litigation removing religion from the public domain: schools, sports teams etcetera. Is the manager of a private corporation, precluded from asking religious questions?

From a legal perspective, the starting point in Canada is the relevant Human Rights legislation; discrimination on the basis of creed or religion is prohibited. Even employment applications and advertising cannot include references to prohibited grounds, i.e. creed. However, such questions may be allowed at the interview stage (Ontario Human Rights Code, s. 23) of the hiring process provided that the discrimination is otherwise allowable. The clearest example of discrimination being allowable is philanthropic and religious exemptions. Religious organizations are expressly allowed to employ only, or give preference to, members of that religion. Clearly, there would be no problem asking questions about the religion if the employer were such an organization. Given the widespread awareness of Human Rights prohibitions, it is increasingly unlikely, as the Supreme Court noted in one case (Meiorin), that a modern employer would discriminate directly - i.e. by asking questions such as "Are you a Christian?" However, indirect questions serve as well to get the answer sought after. Whether intentional or not, such questions may be interpreted by the candidate as religious. Questions such as: "Can you work on Saturday?", "Can you wear our uniform?", " Can you wear a hard hat?", "Can you work five hours without a break?" may be questions revealing legitimate work requirements and they also may allude to religion. Should such qualifications interfere with a person's religious practices, then, the employer's duty to accommodate arises.


But there is no prohibition against asking such questions at the interview stage. Questions which are designed to reveal the candidate's personality, attitude, moral views, or other indicators of suitability for a job may also be double edged. Questions such as "Do you believe in birth control?", "What do you think about condoms?", "Are you against abortion?", "What do you think about same sex marriage?", may have religious overtones. There is nothing wrong with a company screening for personality profiles that fit within the organizational character - provided that those profiles do not exclude candidates on the basis of religion. Psychometric testing, for example, is considered to be a perfectly legitimate method of personality screening. The Human Rights Commission only cautions against screening tools that may indirectly discriminate. Personality and value revealing questions may be asked. Although there is a prohibition against asking religious questions directly, one issue that arises is whether or not the questions result in discrimination.

In an Alberta case involving The City of Edmonton Police, the complainant, Dale Kliparchuk, alleged that he was not hired because of questions asked during the interview. The questions included the following: "Are you a Christian?", "Are you a born again Christian?" and, "Are you a traditionalist, sexually?". Although the Alberta legislation precludes asking such questions, the Commission determined that the information adduced did not contribute to the decision not to hire Kliparchuk; accordingly, the complaint was dismissed.

Another interesting case of questions and screening involves Trinity Western University of British Columbia. The university asked students to affirm their Christianity and confirm that they would not engage in homosexual activity. The B.C. College of Teachers challenged the University's policy on the basis that graduates with those views would be unsuitable as teachers. The College was essentially attempting to screen for religion before the employment applications even occurred. The Supreme Court upheld the University's right to screen for students whose attitudes were consistent with its philosophy and distinguished between holding views and acting on them in a discriminatory fashion. Like the Kliparchuk case, the Trinity decison evinces a willingness of the courts to be wary of absolute prohibitions on religious or value laden discussions so long as there is no resulting discrimination.