Religion and Queer rights: Navigating competing rights in the workplace
September 27, 2023
In May 2023, the York Catholic District School Board voted against flying the Pride flag at its Catholic Education Centre. More recently, protests across Canada called for an end to gender ideology in schools, while counter-protests advocated for inclusive education. One side argues for freedom of thought and religion, while the other cites protection of human rights based on sexual orientation, gender identity and gender expression. And unfortunately, some advocate hate and discrimination.
While all employers must provide workplaces free from harassment and discrimination, what happens when employees have competing interests? Given that creed (and religion), sexual orientation, gender identity and gender expression are all protected grounds under the Ontario Human Rights Code, which rights trump which if they’re at odds?
Although societal discourse may identify some rights as more important than others, courts and tribunals have stated that no rights are absolute and there is no hierarchy of rights. The Ontario Human Rights Commission notes that where there are competing interests, the law often looks at the extent of the interference within the full context, while recognizing rights may not extend as far as claimed. And rights have limits in some cases where they substantially interfere with the rights of others.
For employers, this is tricky, particularly if they want employees to take a specific action. During the COVID pandemic, some employees refused to be vaccinated. Generally, unless a serious concern needs to be addressed, like a health crisis, it is more difficult for employers to obligate all employees take a specific action, rather than giving them a choice. With vaccination, for example, it would be difficult to justify a policy that requires employees who work entirely from home to be vaccinated.
Here are some tips employers can take to navigate competing interests:
- Be tolerant of competing beliefs, but not hateful conduct: Welcome competing ideas and rights while maintaining that discrimination and harassment have no place in the workplace. For example, refusing to wear a Pride flag because of creed is justifiable. Desecrating a Pride flag is not.
- Open the lines of communication: Find out what the claim is about and if they connect to legitimate rights. For example, an employee refusing to use a changeroom with a trans employee present because, according to their religion, they can only uncover themselves in the presence of people of the same sex, is different from an employee refusing to use a gender-inclusive changeroom because they hate political correctness.
- See if both rights can be accommodated: Is there a solution that allows enjoyment of each right? If not, is there a next best solution? Using the same example, can the employer have male, female and gender-inclusive changerooms? If not, can a stall within the changeroom allow for employees to change in privacy?
- Seek legal advice: This is complicated, and even experts, courts and tribunals wrestle with finding the right solution, or at least one that is legally justifiable. And the legal landscape is evolving.
Remember, you can’t change everyone’s mind, but you can encourage them to be respectful. If you’re curious about this topic and want to learn more, register for the Inclusive Workplace Series Module 1: Fostering a Psychologically Safe Workplace for Queer and Trans Employees.