Exemptions from the Act
Relevant Court Cases
Suggestions for your Code of Conduct
A Sample Code of Conduct 

The Supreme Court ruling in the Vriend case this Spring served as an important reminder to many independent schools that they need to ensure that their employment policies will stand the test of a human rights challenge, especially in situations where schools assume that they have the right to require conformity to restrictive codes of conduct and lifestyle standards.

In response to requests from a number of members, I promised to get back to you with advice concerning the development of appropriate policies which will protect the integrity of the schools without contravening labour or human rights legislation or implementing unfair practices relative to your employees.

Please understand clearly that the following comments and observations are reflections of my personal understanding based on my experience and on discussions with employers and lawyers. My comments and advice do not constitute legal opinions, but are offered as a help for schools in drafting policies suitable to their own situations.

Employment policies that infringe Human Rights, Citizenship and Multiculturalism Act on the basis of the race, religious beliefs, colour, gender, physical or mental disabilities, age, ancestry or place of origin, or sexual orientation of a person may be allowed under the exemptions provided by the Act. The exemption in Section 7(3) of the Act says that the prohibition against discrimination "does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement" (BFOR). There have been numerous court cases upholding the right of religious or educational institutions to discriminate by requiring conformity to beliefs and lifestyle standards. For example, in Caldwell v. Stuart [1984], the Supreme Court of Canada determined that a Roman Catholic school could require adherence to the Church’s moral teaching as a condition of employment. Since Alberta’s Act allows such exemption only on the basis of a BFOR, it is important to look at some other cases:

a. In 1991, an Ontario Human Rights Commission Board of Inquiry relied on a 1988 Supreme Court of Canada decision to determine that "on a balance of probabilities" the Christian school could forbid common-law relationships for their teachers because of the need for religious conformity in their school. The Supreme Court [Brossard (Town) v. Quebec, 1988] had emphasized two criteria to determine if such discriminatory practices are appropriate:

Is the aptitude or qualification rationally connected to the employment concerned? This allows us to determine whether the employer’s purpose in establishing the requirement is appropriate in an objective sense to the job in question.

Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom it applies? This allows us to inquire as to the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in
question.

b.Also in 1991, another Ontario Board of Inquiry in Parks v. Christian Horizons, emphasized, among other criteria, the need for the institution to demonstrate that the qualification is a reasonable and bona fide qualification because of the nature of the employment. Christian Horizons failed to meet the criteria, and the Board of Inquiry’s findings are educational for all independent schools which wish to discriminate on the basis of BFORs:

i. The institution must be consistent in the application of its policies concerning lifestyle requirements from the very beginning of the employment period.
ii. Such lifestyle requirements must be clearly indicated or referred to in the employment contracts and, if possible, confirmed in the application and interview process leading to employment.
iii. It is recommended to confirm the necessity of such lifestyle requirements in new employee job orientation programs and updating sessions.
iv. It is not sufficient for such lifestyle requirements to be inserted in policy or program manuals to which no reference is made in employment interviews or which are not made required reading for new staff.
v. The consistency in the application of such lifestyle policies from the beginning of the employment period is crucial.
vi. Arbitrary discretion can never amount to a BFOR: there has to be a rational and reasonable basis for the discrimination.

In this case, Ms Parks had been asked in her employment interview whether she was a good Christian and whether she had any problems with taking part in the religious activities of the Christian Horizons group home. There was no reference to specific lifestyle requirement in her employment contract and no immediate and real effort was made to acquaint her with the lifestyle policies in the policy manual. Ms Parks insists that she sees no conflict between her common-law relationship and her religion.

Suggestions for your Code of Conduct

a. Include a clear statement of the school’s mission and character which forms the basis for the code of conduct and lifestyle requirements. 
b. The code of conduct should be specific and detailed. For example, if you expect staff to confine sexual relationship within heterosexual marriage, don’t expect a reference to "Biblical standards and values" to be sufficient. (There are clergy who will argue eloquently in court that homosexual lifestyles are compatible with Biblical values.) If you mean to proscribe sexual activity with someone other than one’s spouse or with someone of the same gender, then detail what you mean. 

Note: This is a crucial element. Especially in conducts and lifestyles which are protected by Human Rights legislation, your expectations must be explicit. Any ambiguity reduces your code of conduct to a document which only has meaning as long as there is agreement between the staff member and the institution as to its intent.

c. The code of conduct should clearly demonstrate why its elements are BFORs. Remember that these cannot be arbitrary impositions, they must be clear, rational and reasonable linkages to the mission and character of the institution. Include a statement about the need to link out-of-school behaviour to in-school expectations. 
d. Make distinctions where they are appropriate: In some cases it may be difficult to justify the same level of code of conduct requirements for those who are teachers and for those who take out the garbage. It may not be enough to affirm that all
staff members are expected to be role models, you may have to demonstrate that this is, in fact, part of the mission and character of the institution. 
e. Ensure that the code of conduct and all lifestyle requirements are specifically referred to during the hiring process and are included in the employment contract itself. Avoid referring to a pages in a policy manual which the employee may not have read carefully. If the document is attached to the contract and initialed/signed by the teacher as part of the contract, the teacher is not likely to be able to claim that it was not made clear at the time of hiring.
f. Incorporate the possible and probable consequences of inappropriate conduct or lifestyles in the document. Leave yourself room to deal appropriately with violations: Outline what may lead to reprimands or counseling, and what may lead to suspensions and dismissals. 

A possible Code of Conduct and Lifestyle

Note: For this example, I have assumed a Christian school. It will, of course, not even serve all Christian schools but is intended as an example which each school may adapt or use as reference in the formulation of its own documents. 

Introduction

The ABC-XYZ Christian School exists to educate students in the light of the Lord’s revelation in scripture and creation so that they may rejoice in who they are and serve their Creator and their neighbours with all their talents. The School also sees itself as a witness to the meaning of an integrated faith and life in its relationship with the community in which it exists. Our aim as a School is to be a "community of learning" in which every staff member, including teachers, administrators and all support staff serve as suitable and consistent role models for our students. For that reason, we expect the conduct of every employee to be compatible with our statements of faith and our mission.

As a condition of employment, every teacher and staff member voluntarily agrees to the following statement of lifestyle and conduct as an expression of the privileges and responsibilities of working in a Christian academic community. 

Staff Conduct and Lifestyle

As a teacher or other employee of the ABC-XYZ Christian School, who on a regular or casual basis interacts with students, I recognize the importance of my work and lifestyle as a role model of the values taught in this school. To accomplish this I will

1. make myself familiar with the Goals and Mission of the School, and agree to conduct myself in ways which promote the Goals and Mission; 
2. respect my co-workers and deal with them in ways that reflect Christian ethical standards, including the avoidance of gossip and second-hand criticism and any other behaviour which may unjustly damage their professional and personal reputation; 
3. honour and follow disciplinary and appeal procedures prescribed in the School’s policy manual; 
4. abstain from practices which this school’s Christian community finds unacceptable because they are seen to be in conflict with scripture and this community’s standards for the role models of its children and young people, including 
a. the profession and practice of non-Christian beliefs, 
b. profane, abusive and blasphemous language, 
c. abuse of alcohol and other legal drugs and the use of illegal drugs, 
d. theft, fraud, or any other criminal activity, 
e. racial, religious or ethnic prejudice or membership in organizations that promote it, 
f. sexual activity of a promiscuous, extra-marital or homosexual nature, 
g. violent or abusive behaviour or sexual and gender harassment. 

I understand that while the school community recognizes that all Christians have failings, it rightly calls me to live up to the expectations outlined above. I expect that allegations of failure to do so will be dealt with in a caring and loving manner which has forgiveness and reconciliation as its primary focus, and which is outlined in the discipline and appeals policy. However, I also understand that unrepentant or persistent continuance in unacceptable behaviours or lifestyles constitutes grounds for dismissal from the school employment.

Signed: ____________________ Date:______________