Requiring employees to be proficient in English
Question: Can an employer require proficiency in English? Communication is important to the job, but are there are risks of discrimination?
Answer: In Fletcher Challenge Canada Ltd. v. British Columbia (Council of Human Rights), the Ontario Supreme Court highlighted the importance of language: “In a work environment, language may simply be a means of communicating to accomplish a task. It is the process by which job related information is passed back and forth from employee to employee and/or from employee to anyone he or she meets in the course of performing his or her duties.”
Human rights legislation throughout Canada prohibits discrimination on the basis of several grounds including religion, colour, ancestry, nationality, place of origin and race. It does not, however, specifically prohibit discrimination based on language. Consequently, in order to establish discrimination on the basis of language, it is necessary to establish a link to at least one of the enumerated grounds. In Kennedy v. British Columbia (Ministry of Energy and Mines), the British Columbia Human Rights Tribunal found language discrimination could adversely affect some whose first language wasn’t English because of their ancestry, which can be a ground for discrimination.
There have been a number of cases where discrimination by reason of language or mother tongue was found to be prohibited by virtue of it being included under grounds such as “ancestry” or “place of origin.” In Cousens v. Canadian Nurses’ Assn., the Ontario Board of Inquiry found mother tongue was closely associated with ancestry enough that to give preference in employment to a francophone qualified as discrimination based on ancestry.
Employers must proceed cautiously when implementing proficiency in English as a workplace rule. Discrimination based ostensibly upon language while in reality based upon race or national origin would be prohibited.
However, a language restriction or qualification could be justifiable in certain circumstances. English proficiency requirements, as with all job skills and abilities, must be related to the performance of the job in order to constitute a “bona fide occupational qualification.”
What is a reasonable occupational requirement and what is a barrier designed to discriminate against a particular group of people is a question of fact to be determined on a case-by-case basis. For example, it may be reasonable to require a teacher of the deaf be able to communicate with her students by means of sign language.
A bona fide occupational requirement that employees be proficient in English may be justifiable in the workplace for safety or economic reasons. However, refusing to employ someone on the basis of language deficiency, when the ability to communicate in a particular language is not necessary to perform the job, would likely be considered an attempt to discriminate on the basis of race, colour, ancestry or place of origin.
For more information see:
•Fletcher Challenge Canada Ltd. v. British Columbia (Council of Human Rights), 1992 CarswellBC 333 (B.C. S.C.).
•Kennedy v. British Columbia (Ministry of Energy and Mines), 2000 CarswellBC 2872 (B.C. Human Rights Trib.).
•Cousens v. Canadian Nurses’ Assn. (1981), 2 C.H.R.R. D/365 (Ont. Bd. of Inquiry).
