Discrimination or unequal treatment may be legally defensible in certain circumstances.
1. Participating in special interest organizations
First, s. 18 of the Code provides that religious, philanthropic, educational, fraternal or social institutions that are primarily engaged in serving the interests of persons who are identified by their creed, may give priority to persons of the same creed with regard to participation or membership.
2. Employment in special interest organizations
Second, s. 24(1)(a) of the Code provides that religious, philanthropic, educational, fraternal or social institutions that are primarily engaged in serving the interests of persons identified by their creed may employ or give preference in employment to persons similarly identified, if the qualification is reasonable and in good faith in relation to the nature of the employment.
Example: An educational institution such as a denominational school may prefer to employ teachers of the same denomination or faith. This hiring policy would be permitted if the teacher's own faith is related to the professional functions that teachers are expected to perform in denominational schools. However, this same defence is not available to the school with respect to the hiring of maintenance staff. The school must show that the requirement of belonging to a particular faith has a rational connection to the essential duties of a job.
3. Reasonable and bona fide occupational requirements, qualifications or factors
If a requirement, qualification or factor is neutral or non-discriminatory on its face, it may nonetheless have an adverse impact effect and may be discriminatory under s. 11 of the Code. However, the Code provides a defence if the requirement, qualification or factor is reasonable and in good faith, and if the needs of the persons affected cannot be accommodated without undue hardship to the person responsible for accommodating those needs.
Example: A policy that requires all employees to work on a day that coincides with the holy day of a particular creed may be defensible, despite its adverse impact on some employees, because the nature of the business is such that a certain day of the week is critical to the operations of the establishment. However, the employer has a duty to accommodate an employee, if this can be accomplished short of undue hardship to the employer. Administrative inconvenience does not constitute undue hardship.
- The requirement in question must be established in good faith with the intention of achieving its stated business objective, and not as a means to avoid the purpose of the Code.
- The requirement must be objectively connected to its stated business purpose.
- The requirement should be the least discriminatory alternative available, other things being equal.