Accents, language issues in the workplace (Toughest HR question)

Need bona fide reason for discrimination
By Andrew Treash
|Canadian HR Reporter|Last Updated: 08/05/2010

Question: How can you overcome discrimination against people who speak English with a foreign accent?

Answer: Under human rights laws, everyone has the right to be free from employment-related discrimination based on certain grounds. While these grounds vary from province to province, they generally prohibit employment-related discrimination based on someone’s accent. It would be illegal not to hire someone because of her accent, for example, but discrimination could also occur any time a person is treated differently in the workplace because of her accent.

Under Canadian human rights legislation, discrimination is permitted if it is based on a bona fide occupational requirement. This means the requirement is essential for the person to perform the job. A simple example from the Canadian Human Rights commission is eyesight for airline pilots. For many other jobs, having perfect eyesight would not be a bona fide occupational requirement and treating someone differently because of poor eyesight would be discrimination.

While it could be a legitimate job requirement to be able to speak clearly in English, it is difficult to imagine a job where speaking with a certain accent would be essential to properly performing the job duties (except for actors, maybe, but even they may be able to learn to speak with a different accent with coaching). Therefore, assuming it is not a bona fide occupational requirement, a person experiencing such discrimination could file a complaint with her employer or with the jurisdiction’s human rights commission.

Question: Can you generally require proficiency in English?

Answer: There is no single answer covering all jobs. Treating someone who is not proficient in English differently from someone who is proficient in English could potentially run afoul of human rights laws. However, depending on the job, there is a chance proficiency in a language could be considered a bona fide occupational requirement. An English teacher would need to be highly proficient in English but a backhoe operator probably would not (although he would likely need to understand enough English to be able to understand instructions).

Question: How far does a company have to go to accommodate an employee?

Answer: An employer has to make attempts to accommodate a person’s protected characteristics to enable her to carry out the duties of the job. The duty to accommodate is most commonly associated with a person with a disability, although it can arise in relation to other prohibited grounds of discrimination. However, if the disability makes the worker unable to carry out one or more essential job duties, in spite of the employer’s accommodation efforts, then the employer may exclude the disabled person because of her disability.

The Supreme Court of Canada has said in order for a job requirement to be a bona fide occupational requirement, the answers to the following questions must be “yes”:

• Was the requirement adopted for a purpose rationally connected to the performance of the job?

• Did the employer adopt the requirement in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose?

• Is the requirement reasonably necessary to the accomplishment of that legitimate work-related purpose?

Most decisions turn on the third question — whether the job requirement is “reasonably necessary.” Until fairly recently, some courts interpreted this to mean an employer must show it is almost impossible for a person with a disability to do that job. However, in the 2008 decision of Hydro-Québec v. Syndicat des employées de technique professionnelles et de bureau d’Hydro-Québec, section locale 2000, the Supreme Court clarified the employer only needs to show accommodating the person will impose “undue hardship” on the employer. What constitutes undue hardship is different in every case but, ultimately, this means an employer does not need to fundamentally change the job to accommodate the person.

Every case must be evaluated based on the circumstances at hand. An employer has to explore the possibilities for accommodating a person’s disability that would allow her to carry out the job’s essential duties.

Andrew Treash is an HR compliance product writer for Consult Carswell. For more information, visit www.consultcarswell.com.

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