As always, the answer to this question is “yes”, “no” and “it depends”.

“Yes” — “language” is not a specifically prohibited ground of discrimination under Human Rights legislation in any jurisdiction in Canada except for Quebec and the Yukon.

In the Yukon, language is specifically included under “linguistic background” which is a prohibited ground of discrimination under the Human Rights Act.

Under the Quebec Charter of Human Rights and Freedom, every person has a right to full and equal recognition and exercise of his or her human rights and freedoms, without distinction, exclusion or preference based on “language”, amongst other grounds. The Charter is a fundamental law that takes precedence over all other laws in Québec.

In addition, in Québec, section 46 of the Charter of the French language prohibits employers from making the obtaining of an employment or office dependent on knowledge, or a specific level of knowledge, of a language other than French (French the sole official language of Quebec), unless the nature of the duties requires such knowledge. The employer can invoke the argument that performance of the duties requires knowledge of a language other than French, but the employer will have the burden of proving that such is the case. Section 45 of the Charter state that employers are strictly prohibited from dismissing, laying off, demoting or transferring a member of their staff for the sole reason that he or she only speaks French, that he or she has insufficient knowledge of a particular language other than French, or that he or she has demanded that a right arising under the Charter be respected.

“No” — although not specifically listed as a prohibited ground in most canadian jurisdictions, discrimination against an employee related to the language he or she speaks may be covered by other prohibited grounds such as national or ethnic origin, ancestry, or race, and would therefore be prohibited. In addition, a requirement, act, policy or qualification which may not be discriminatory on its face, may still have discriminatory results when applied if it results in a discriminatory effect on a group identified by a prohibited ground, referred to as “constructive discrimination”. For example, Ontario accepts complaints on the grounds of ancestry, ethnic origin, place of origin and race. New Brunswick and the Northwest Territories will accept language-related complaints filed on the basis of ancestry, although not an enumerated ground.

“It depends” — although an employer cannot discriminate against an employee because of the language he or she speaks, an employer can require employees to speak English (or any other language) if it is a “reasonable” and “bona fide” requirement of the job in the circumstances and the employee cannot be accommodated without undue hardship to the employer. Human Rights Commissions/Tribunals have recognized that a proficiency in English may very well be a bona fide occupational requirement (“BFOR”), but the requirement for English proficiency and the degree of proficiency must still objectively be shown to be a BFOR and in good faith.

Employers must be mindful of the following:

• Employers cannot ask job candidates to identify their “mother-tongue”
• Requiring English proficiency or fluency may be acceptable if it is a BFOR, but the BFOR must be objectively demonstrated and in good faith
• A prohibition against speaking another language in the workplace, without a BFOR, or if imposed at times when the BFOR wouldn’t apply (i.e., lunch breaks), would be discriminatory. Any policy requiring employees to speak English should limit its application to the performance of the job function and should state when it does not apply
• If English proficiency is not a BFOR, employers must still ensure that employees are adequately and properly trained and ensure that all health and safety rules, policies and postings are acknowledged and understood by all employees regardless of the language they speak or read
• When creating policy employers should never single out a particular language
• Employers should be cognizant of relationships between groups of employees who speak different languages. Language barriers may result in behaviours or perceived behaviours which could result in strained relationships between employees

Michele Glassford
Editor of Human Resources PolicyPro
published by First Reference Inc