Blatt v. Catholic Children's Aid Society
1980-02-21
Ontario Board of Inquiry
CHRR Doc. 80-014
Louis A. Blatt Complainant
v.
Catholic Children's Aid Society of Metropolitan Toronto Respondent
Hearing Dates: August 9, October 31 and November 1, 1979
Date of Decision: February 21, 1980
Before: Ontario Board of Inquiry, Bruce Dunlop
Appearances: John Sopinka, Q.C. and Stephen McCormick for the Ontario Human Rights Commission and Louis A. Blatt Arthur P. Tarasuk for the Catholic Children's Aid Society of Metropolitan Toronto
BONA FIDE OCCUPATIONAL QUALIFICATION — moral lifestyle for caregiver — FAMILY STATUS — employment denied on the basis of common-law relationship
Summary: An Ontario Board of Inquiry dismisses Louis Blatt's complaint against the Catholic Children's Aid Society for discrimination in employment based on marital status.
The respondent hired Mr. Blatt as a childcare worker in a boys' residence in November 1977. He was discharged the same day, after disclosing that he was living in a common law relationship with his fiancée.
The respondent argued that its decision was based on Mr. Blatt's "lifestyle" and not his "marital status" as the complainant and the Commission argued.
The Board finds that Mr. Blatt's living arrangements pose an issue of sexual morality and lifestyle, not marital status. The law generally recognizes two conditions of marriage: married or single. The Family Law Act now offers certain rights to those who cohabitate for at least two years without marrying, based on the idea that such relationships do lead to dependency. According to the Board's interpretation, however, this development does not create a new status between "married" and "single", nor does it create a new form of marriage.
The Society did not object to Mr. Blatt being either married or single – his "status" – but rather to his living with a woman who was not his wife. The Board agrees with the respondent's view that its objection to this arrangement involved a question of lifestyle or sexual morality, not marital status.
The Board noted that Mr. Blatt diverged from espoused Church principles in other ways as well, which the Society was prepared to accept. Although the Board does not view the question of Mr. Blatt's living arrangements as being more of an impediment to his effective performance in the position than the other divergences, it must uphold the Society's right to apply its own moral standard.
Since sexual morality is not a prohibited basis of discrimination under the Code, the Board concludes that this complaint does not fall within the purview of the Code.
The complaint is dismissed.
REASONS FOR DECISION
1Louis Blatt was hired by the Catholic Children's Aid Society of Metropolitan Toronto to be a child care worker in a boys residence in November 1977. He was discharged again on the same day. He was hired because he was thought to be well qualified for the job. He was discharged because, in giving pertinent information for pay and benefit purposes he disclosed that he lived with his fiancee in what was referred to as a "common-law" relationship. According to Winnifred Koneri, Director of Foster Care Resources for the Society, who made both decisions, Mr. Blatt's living arrangements were unacceptable on two counts. "First of all," she testified, "it was incompatible and in conflict with the therapeutic milieu of the treatment programme for the boys and secondly, it was in conflict with the Society's position as far as family life is concerned."
2Mr. Blatt complained to the Ontario Human Rights Commission, thereby raising the issue to which this Board must address itself; has there been a breach of s. 4(1) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, which prohibits discrimination in employment practices on the basis of "race, creed, colour, age, sex, marital status, nationality or place of origin." The view advanced by the complainant and the Commission was that he had been the victim of discrimination based on "marital status". The argument on behalf of the Society was that the complainant's "life style" rather than his "marital status" was the problem.
3The Board found all witnesses frank and sincere and essential findings of fact were not difficult. However, some of the questions of fact shade into questions of opinion and here the views of the parties were at variance. The Board has, therefore, had to make a choice.
4Counsel for the complainant and the Commission challenged Mrs. Koneri, mainly by way of cross-examination, on both her reasons for finding Mr. Blatt unacceptable. As to whether Mr. Blatt's living arrangements offended principles espoused by the Society, Mrs. Koneri's evidence was supported by that of the Rev. Paul Lennon, Executive Director of the Council of Catholic Charities and a member of the Board of Directors of the Catholic Children's Aid Society. He said, first, that the Roman Catholic Church considered the behaviour of a man and a woman living together as husband and wife without having gone through any form of marriage to be immoral. Next, he said that the Catholic Children's Aid Society was expected to follow the teachings of the Church related to the care of children. Recitals in the letters patent of the Society reinforce the importance of Catholic principles in the care of children. No witness contradicted Mrs. Koneri or Father Lennon on these matters. Hence the Board's conclusion is that Mr. Blatt's living arrangements did offend principles espoused by the Society, albeit there is no formal rule of the Society concerning the employment of personnel in such circumstances.
5It should be noted, however, that Mr. Blatt's views on abortion offended principles espoused by the Society as well, and his religious views were certainly at variance with those motivating the Society because Mr. Blatt is a Jew. Mrs. Koneri's own religious views cannot be altogether congruent with those motivating the Society, for that matter, because while Mrs. Koneri is a Christian, she is not a Roman Catholic. In any event, neither of these factors was regarded as a barrier to hiring him because Mr. Blatt said that (1) if faced with an abortion issue he would be willing to deal with it in a manner approved by the Society, and (2) he would feel perfectly comfortable taking boys under his care to the services of the Church.
6The distinction among various forms of divergence from Roman Catholic principles was never made clear. Why do some create problems while others do not? Perhaps the answer is to be found in the difference between beliefs and practices. Possibly a belief in the propriety of common-law liaisons might have been overlooked had Mr. Blatt not been involved in one. This, however, is speculative. The fact remains, a responsible official of the Society drew the distinction.
7Certainly the opinion of Mrs. Koneri was that Mr. Blatt's relationship would have a greater practical impact than other departures from principle, hence her concern about the "conflict" it would create with the "therapeutic milieu". Mr. Blatt, who said he would be perfectly willing to follow the teachings of the Church in his dealings with the children, suggested that he would simply not have disclosed to them the nature of his domestic arrangements. Mrs. Koneri asserted that it was unrealistic to think one could conceal that kind of information and that its discovery would be destructive of the trusting relationship between child and worker. The children would regard Mr. Blatt as a "phony".
8On cross-examination, however, Mrs. Koneri agreed that there were circumstances in which she would decline to disclose personal matters to children. The Board would be greatly surprised if it were otherwise. It surely is not the case that the child care worker's life must be an open book. One would suppose children should learn – perhaps from the child care worker – that there are matters which people, be they their seniors or their peers, are not prepared to disclose or discuss and that they must accept and respect the right of privacy. Why the particular information here at issue would be more difficult to conceal than other personal matters was never made clear to the Board and the Board was not persuaded that this departure from Roman Catholic principle was likely to be more dangerous than others, given Mr. Blatt's co-operative attitude.
9It is not, however, necessary to determine whether the reasons for Mr. Blatt's discharge was justifiable unless the Board first concludes that there has been discrimination on the basis of marital status. Such a conclusion would place on the Society the onus of showing that marital status is a bona fide occupational qualification and requirement so as to bring it within the exception provided for by s. 4(7) of the Code. On this issue the Board's view is that the termination of Mr. Blatt's brief appointment was not based on his "marital status". It was, as the Society argued, based on a moral judgment about his "life style" and while, as already indicated, the Board is not convinced that the complainant's "life style" posed a greater impediment to his effective performance than other divergences from Church principle, the Board must uphold the right of the Society to apply its own moral standard. The issue is not "was the complainant capable of fulfilling the requirements of a child care worker" but "was the complainant capable of fulfilling the requirements of a child care worker as conceived by an organization espousing a particular set of religious and moral principles".
10The Human Rights Code overrides moral judgments that are based on biased views about race, creed, colour, age, sex, marital status, nationality or place of origin where such judgments affect the individual's employment and accommodation rights. This is important social policy. Though an interference with freedom in one sense, it is also fundamental to any kind of equality of the individual and hence is essential to freedom in a higher sense. But the Code also tacitly recognizes that there is freedom to differ about many other moral issues, and that individuals and organizations are entitled to govern their conduct in accordance with their moral views even though they may not be accepted by the whole of society. If the moral view of the Catholic Children's Aid Society is not a view with which the Code has seen fit to interfere, the freedom to be governed by it must be upheld by a board deriving its authority from the Code. That is as important a freedom as those the Code explicitly protects. In fact, the recognition of the Catholic Children's Aid Society as a separate organization based on its religious principles is statutory. See the Child Welfare Act, 1978 (Ont.) c. 85.
11Marital status is not more fully defined in the Code, nor in any other statute, nor the common law. A dictionary adds little to one's understanding since "marital" means "of, or pertaining to marriage" (OED) and status means, among other things, "legal standing or position" and "condition in respect, e.g., of ... marriage or celibacy" (OED again). But one may say that until recent years, at least, the law in this jurisdiction has recognized only two conditions in respect of marriage. One either was married or one was not; though which category one fell into could sometimes be a tricky question. One could even believe one was married, and not be, and vice versa. The expression "common law marriage", at least in this jurisdiction, was a euphemism for "living as though married without being married." The pejorative expression was "living in sin". Recently the Family Law Reform Act, 1978 (Ont.) c. 2, without using the term "marriage", has moved to give rights inter se to parties to such relationships that they hitherto have not possessed. It recognizes that cohabitation without marriage should in certain circumstances lead to rights of support because, in fact, it leads to dependency. Does the Act thereby create a new form of marriage? Or, alternatively, does it create a third status between "married" and "single" that must be referred to as a "marital status"? It appears to the Board that the language of the statute carefully avoids either result. In any event, the complainant's relationship was not one to which the Act would have applied. It lasted less than two years.
12Counsel for the Commission argued that had Mr. Blatt been married to the woman with whom he was living he would have been acceptable to the Society, and the evidence clearly supports that proposition. If he was discharged because he was unmarried to the woman with whom he was living, the argument continues, then he was discharged because of his status as a single person. With this proposition the Board takes issue. The Board has no doubt that the Society would have taken the same position if he had been married but living conjugally with a woman other than his wife. The key to the Society's objection was not that Mr. Blatt was married nor that Mr. Blatt was single, by any legal definition of the terms, but that he was living with a woman other than his wife. In the Board's view this is an issue of "life style" or sexual morality, not an issue of marital status.
13The question of what marriages the Roman Catholic Church regards as valid was not canvassed before the Board but it appeared that there might be some the Church does not accept. Had this been a case of legally valid marriage not morally acceptable to the Church then the Code would probably apply. But such is not the case. To hold that the Code covered this case would, in the Board's view, be to conclude that sexual morality is a prohibited basis of discrimination. To come to this conclusion would be to legislate in an area the Legislature has left open. However sound one might think such a conclusion as a matter of social policy, it is not for a Board of Inquiry under the Code to try to establish it.
14It was indicated earlier in these reasons that case law seemed to add little to the solution of the problem here. One should, however, make explicit reference to one of the Board of Inquiry decisions cited by counsel for the Commission. This is the decision in Cooper and Belmont Property Management. In that case the Board expressed the opinion that where an employer refused to employ a person because he or she was married to a black person, the employer could be said to discriminate on the basis of marital status. Much as one sympathizes with the result of this reasoning, one wonders how sound it is in law. It is resorted to because the prohibition against discrimination in employment on the basis of colour contained in the Code speaks only of the employee or potential employee and not of the employee's spouse. Whether this be a deliberate omission or an oversight cannot be determined, although one suspects that it was an unforeseen case. But whether or not the ruling be sound, the case is distinguishable in that the factor inducing discrimination in Cooper is one with which the Code is expressly concerned. Certainly the extended prohibition can be seen to be in keeping with the spirit of the Code, perhaps even with a broad and liberal interpretation of the Code. An extension to sexual morality about which the Code is altogether silent would involve a much greater step and a step which this Board, with respect, is not prepared to take.
15The complaint is therefore dismissed.