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There's more at issue here than sexual orientation
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Date Posted on this Site
May 13, 2010
Publication
Vancouver Sun
Publication Date
May 12, 2010
Published Content
A clash of rights involving a lesbian teacher and a private school raises questions about being upfront with one's employer, and our ethics legislation
By Geoffrey Howard, Special to the Sun
The case of Lisa Reimer, the music teacher who was ordered to stay away from her Catholic school after it became known she was a lesbian parent, could have been a law school exam problem. This story neatly raises three major political issues facing Canadians today and a fourth one about our educational system:
How far does freedom of religion extend to protecting the doctrines or practices of a religion? Quebec is banning full veils in public facilities and British Columbia is seeking a ruling on a law prohibiting polygamy. How far can a religious school go in policing the private life of its employees?
Are there secular Canadian values, such as not tolerating discrimination based on sexual orientation, which must trump other rights such as freedom of religion? Does it make a difference that the particular religious organization is partly funded by the public and Reimer chose to work for it?
Balancing the rights of parents and their employers is a hot topic in many workplaces. Do workers adopting a child have equal rights to parental leave regardless of sexual orientation? What if they are on a one-year term contract like Reimer is at Little Flower Academy?
At a time when school boards must do more with less, does it make sense that a public school teacher can take a multi-year leave to teach for private schools that compete with her school board?
Freedom to practise a religion of one's choice is a founding principle of Canada. The Catholic Church has long exercised freedom of religion by operating large school systems in which Catholic doctrine is taught and in which all staff are required to adhere to Catholic values in their teaching and private life. Little Flower Academy had Reimer sign a contract that precluded her from conducting herself in a manner incompatible with "Catholic values" (a "Catholic clause").
But all rights must have limits and the Charter of Rights itself expressly states that all rights are subject to "reasonable limits." The courts regularly uphold laws that interfere with some religious practices; e.g., the Supreme Court of Canada upheld a law requiring a photo of Hutterites on their driver's licences, even if photos are contrary to their religion. In most such cases, the government is arguing that the economic or general social interests of the society at large should take priority over the freedom to practise one's religion. The Reimer case shows that, in some cases, one person's fundamental right (freedom from discrimination based on sexual orientation) can clash directly with another group's equally fundamental right, i.e., to practise their religion.
The Charter has been interpreted as including the "equality right" to be free from discrimination by government bodies based on sexual orientation. The same right is found in the B.C. Human Rights Code, though there is an exception for non-profit religious and other bodies to give "preference" to members. The Reimer case raises questions about the limits of that protection. Reimer had a job at the Vancouver school board and hardly needed to seek work at a Catholic school board. Should antidiscrimination laws apply when a minority person voluntarily seeks out a situation in which she could reasonably expect that her sexual orientation would clash with the values of her religious employer?
Reimer was apparently "out" as a lesbian and in a long-term relationship with her partner when she signed Little Flower Academy's contract. It would therefore appear that she misrepresented both her current lifestyle and her intentions about complying with the Catholic clause when she signed it. According to the school, she then made it known among students and staff that she was having a baby with her partner.
Reimer denies that, but acknowledges it became publicly known. Surely all this should also make a difference in whose rights should prevail. The general principle in human rights case law has been that protected minorities do not have to declare or disclose that they belong to such groups, even when asked. This case demonstrates that such an approach may not always be appropriate.
The fact that Little Flower Academy is receiving a substantial educational grant from provincial taxpayers should also be a significant factor in resolving this clash of rights. Where a religious group wishes to enjoy the benefit of public funding, it seems fair to require it to meet basic standards in the way it operates its schools. Public funds should not go to separate schools advocating terrorism or oppression of women. Why should they go to a Catholic school that refuses to allow known lesbians to teach?
The 1984 Supreme Court of Canada decision Caldwell v. St Thomas Aquinas (another local Catholic school) ruled that Catholic schools are entitled to enforce Catholic clauses both because such clauses are a "bona fide occupational requirement" for Catholic school teachers and because they are covered by an exemption for religious and other non-profit groups in the Human Rights Code. The decision likely protects Little Flower from liability, but this may be a legal precedent that needs to be revisited to reflect our changing society and values.
Media reports on the Reimer case, however, have overlooked her statutory right as a parent to take parental leave. Under the B.C. Employment Standards Act, all employers must grant up to 37 weeks of parental leave to birth mothers and fathers and to adoptive parents, regardless of the sex of the parents.
As an adopting parent under the act, Reimer had the absolute right to take the three weeks she requested as parental leave, regardless of her sexual orientation and regardless of the fact she was at Little Flower on a one-year contract. If so, Little Flower violated the act by requiring her to take the time off as "personal leave," which fails to respect her status as a parent. Newspaper reports record Little Flower officials as stating they did not believe they had to provide parental leave. They were at least partly in the wrong in this case by denying it to Reimer.
But how did she get into this situation? She is a tenured teacher with the Vancouver school board and will be returning in September. Apparently, she had been approved to take two full years of personal leave under her union's collective agreement. While there are legitimate reasons for granting leave to teachers (e. g., to upgrade qualifications), as a taxpayer, at a time of funding dilemmas for education, it is difficult to understand why a two-year leave should be granted to allow a teacher to work for two competing private schools, first Crofton House and then Little Flower.
In an era in which the provincial government has had to appoint a consultant to assist the Vancouver school board in reducing its non-direct teaching costs, this is an excellent example of unnecessary rights and benefits that have been given to public school teachers which ultimately cost the taxpayers. In fact, the Vancouver school board collective agreement allows for more than 34 (seriously) different types of leaves, only a small fraction of which are required by law or common in most workplaces.
Such long personal leaves not only impose direct financial costs, but often create much bigger problems for programming. Teachers taking long leaves disrupt the development of long-term programs such as music. Also, their return effectively results in bumping another teacher who would otherwise have got the tenured position.
The VSB should be reviewing its collective agreement and eliminating the potential for abuse of these leaves, as well as reducing the number and duration of unnecessary leaves. It simply makes no sense that VSB-tenured teachers should be out working for private schools, which directly compete with the VSB for students.
Neither side in this clash of rights comes out blameless.
Given Reimer's decision to work at a Catholic school when she already had a VSB job and then her failure to be upfront with her employer about her sexual orientation and related life choices, including that her lesbian partner was pregnant, it is difficult to be sympathetic.
However, the school overlooked her parental leave rights and, given the significant public funding extended to religious and other private schools, the provincial government should review the terms on which they receive funding to ensure they avoid unfair discrimination and comply with parental rights.
J. Geoffrey Howard is a partner and head of the employment and labour practice group with Gowling Lafleur Henderson LLP in Vancouver.
My Response Letter
Geoffrey Howard presents well the sundry rights and duties in the unfortunate "clash of rights involving a lesbian teacher and a private school".
Yet he omits the predominant rights: the right of the parents to choose a school that corresponds to their convictions (and one that does not impose on students educators whose lifestyles are diametrically opposed to their parents' convictions) and the right of children to receive an education that respects the moral and spiritual dimensions of human life and does not offend their dignity.
Jason Gennaro
Was my response published?
No