Discrimination Based On Religion In Not Hiring Unqualified Applicant

January 2017

Previously printed in the LexisNexis Labour Notes Newsletter.

On March 2, 2016, the BC Human Rights Tribunal issued the last of four decisions involving a complaint of discrimination against Amaruk Wilderness Corp. because it refused to hire the complainant, Bethany Paquette, as an assistant guide intern. Paquette alleged that she was denied employment on the basis of ancestry, religion and political belief.  Her claim was brought against Amaruk and one of the company’s representatives.

The Board had issued three preliminary decisions dealing with objections to disclosure, including whether the respondents were operating within the jurisdiction of the Board. When the hearing on the merits got underway, the respondents raised a number of other preliminary issues including the personal respondent’s request that all questions be put to him, and his answers should be, in French; that he had been denied representation by European lawyers respecting production orders that had been made beyond the jurisdiction of Canadian administrative tribunals and courts; and that the Tribunal was incompetent to hear the case.  After “berating the Tribunal for the aforesaid issues”, the respondents left the hearing and it proceeded in their absence.

The complainant had responded to a website ad and applied for an assistant guide internship with Amaruk. The company was described in the ad as having an operation in Vancouver.  The job posting specified certain qualifications, which the complainant agreed she did not meet.  Notwithstanding that, she provided her resume with a cover letter that explained why she wished to work for the company.  Her resume included the fact that she had attended Trinity Western University and, as a student of the University, had signed the “Community Covenant” reflecting a code of conduct for evangelical Christians which was described by the Ontario Superior Court of Justice in Trinity Western University v. Law Society of Upper Canada as follows:

Marriage within the evangelical Christian tradition has been defined as an exclusive, life-long, covenant of union of male and female. Portions of the Bible are interpreted as the foundation for that belief.  Because evangelical Christians understand marriage as divinely instituted, it takes a central position in the theological understanding of the good Christian life for human beings.  Consequently, those who are unmarried are expected to abstain from sexual relations, living chaste and celibate lives.  Same-sex intercourse is believed to be contrary to biblical teaching and, therefore, morally unacceptable.  These teachings about sexual morality are integral to an evangelical Christian faith.

Rather than simply reject the complainant’s application based on her lack of qualification, the respondents went on to describe a second reason for their decision:

Additionally, considering you were involved with Trinity Western University, I should mention that, unlike Trinity Western University, we embrace diversity, and the right of people to sleep with or marry whoever they want, and this is reflected within some of our staff and management. In addition, the Norse background of most of the guys at the management level means that we are not a Christian organization, and most of us actually see Christianity as having destroyed our culture, tradition, and way of life.

The complainant responded to this communication with an e-mail ending with “God Bless, Bethany Paquette, proud Christian and Graduate of Trinity Western University”. This provoked an immediate response from the respondents which stated, in part:

In asking students to refrain from same sex relationships, Trinity Western University, and any person associated with it, has engaged in discrimination, as well as intolerance against other people’s beliefs, religious, and otherwise. This is precisely because we cannot tolerate discrimination, or intolerance, that graduates from Trinity Western University are not welcome in our (Norwegian) company.  There are also practical concerns about a Christian university that rejects the concept of evolution but still grants “biology” degrees.

If you were opposed to same sex relationships but weren’t trying to force your views onto other people, this would be completely different. Everybody is entitled to their beliefs and opinions, and this works quite well in our company.  However, you force other people to embrace your religious beliefs, by preventing them from doing as they wish with their own life and body.  This is where we draw the line however.

This is nothing new: people who did not agree with your church would be flayed, burnt, roasted, quartered, etc. … so you guys have a long history of intolerance.  You are even reinforcing this idea by excluding our own religion from your list of religions.

The Tribunal concluded that the complainant’s religious beliefs were a factor in the respondents’ rejection of her employment application. The respondents’ criticism of the religious tenets of Trinity Western University were tied to their statements that those beliefs and opinions would not be compatible within the company.  It was therefore implied that religious beliefs were a factor in rejecting the employment application.  The Tribunal went on to find that the respondents religiously harassed Paquette.  It noted that where conduct is extreme, as here, as little as a single act may be sufficient to make such a finding.

With respect to the allegation of discrimination of the basis of ancestry, the Tribunal held that one’s religious background, or historical religious practices, do not fall within the rubric of ancestry.

The Tribunal rejected the respondents’ assertions that its activities were beyond the jurisdiction of the Tribunal noting that the job offer was made in British Columbia, the job applicant was a resident in British Columbia and the position was to be in British Columbia.

No order for wage loss was made as the complainant did not possess the qualifications for the position set by Amaruk. However, the Tribunal set damages at $8,500 for injury to dignity, feelings and self-respect, finding the nature of the harassment by the respondents was egregious.  The award might have been greater but, as the Tribunal noted, the harassment took place over only four days and was contained solely in correspondence.

The Tribunal held that comments made by the personal respondent during the hearing could not form the basis of the Tribunal’s decision or be considered in the damages award.

The complainant also sought recovery of costs for the misconduct of the respondents because of their refusal to produce documents. The Tribunal rejected that claim stating that its jurisdiction to require production did not extend beyond the boundaries of the province of British Columbia.  In addition, the respondents were deprived of their right to have admitted into evidence the documents they had not produced and, in addition, could have been deprived of their right to have testimony regarding the subject matter of the documents.  In other words, those sanctions were sufficient and an award of costs for misconduct was not warranted.