Bona fide occupational requirements around accents, knowledge of certain languages
By Brian Kreissl
A few weeks ago, I wrote about some issues surrounding language in the workplace. I promised I’d return to that theme again shortly.
In any organization, communicating effectively with employees is an important part of having positive employee relations. In certain circumstances, employee and organizational communications can even have serious legal, financial and safety implications.
Because of this, Canadian human rights jurisprudence recognizes employers are entitled to insist on certain requirements related to language in the form of bona fide occupational requirements/qualifications. It’s difficult to determine when an employer can essentially discriminate based on one of the prohibited grounds, and the area of language is no exception.
When in doubt, HR practitioners should always check with a qualified employment lawyer, but there are a few situations where employers can insist on certain requirements related to language in the workplace. There are also some things to avoid.
Requirements around accents
Accents can cause problems for employers — it would be very difficult to justify a job advertisement requiring someone to speak English in a “clear, accentless voice.”
Thinking about this from a purely practical perspective, contrary to what most people in North America think, everyone has an accent.
Do people from Toronto have accents? I’d argue they do.
Regardless of where they come from, all speakers of the English language have some type of accent.
Even if a jobholder is required to have impeccable verbal English (or French) communication skills, as long as someone speaks the language very well, in most situations insisting on a certain accent (or lack thereof) is highly discriminatory.
Personally, I’ve met many people who speak English very well, but with an identifiable accent from somewhere else. Many of those people are perfectly understandable, yet some downright bigoted customers pretend not to understand them.
While employers aren’t allowed to discriminate because they have bigoted customers, if people have major problems understanding a call centre representative or receptionist, there might be a problem. But before rejecting such a candidate, it’s important to ensure interviewers aren’t just biased against someone who speaks differently from them.
Likewise, the only time I could see an employer getting away with requiring a specific accent is for theatrical purposes. Even then, some actors can learn to fake certain accents (for example, Mike Myers and Robin Williams are pretty good at doing Scottish accents).
Requiring knowledge of specific languages
English and French are Canada’s official languages. Employers are therefore entitled, in most cases, to require at least some level of fluency in one or both official languages.
However, care must be taken not to require a high level of fluency in English where only rudimentary knowledge is required. For example, while a cleaner would likely need to understand basic instructions in English, requiring a candidate for such a position to have a native level of fluency would likely be discriminatory.
What about knowledge of languages other than English or French? Depending on the circumstances, such requirements can also be legitimate.
For example, I used to work for a large financial institution. It had a successful Asian banking unit that targeted customers from certain Asian countries. Obviously, the organization preferred to hire candidates for those positions who spoke one or more of the languages in which services were provided.
As long as the requirements only related to the ability to communicate and be fluent in those languages, a valid bona fide occupational requirement could likely be demonstrated.
However, where an organization goes one step further in requiring candidates to actually be from a certain country, that would likely overstep the boundary. Likewise, inquiring about how someone became fluent in a certain language is generally a no-no.
In many businesses, the actual working language may be a language other than English or French. If a large proportion of the organization consists of people who speak little or no English or French, or if clients are served in the other language, requiring someone to speak the language would probably be legitimate.
However, what about an organization where everyone speaks English fluently, in addition to another language? While I’ve seen advertisements from such organizations suggesting they would prefer candidates who speak a certain language, I’m personally not too keen on such “requirements” or “assets” being listed in job advertisements.
To me, that smacks of discrimination, deliberately narrows an employer’s talent pool and can hamper the organization’s ability to service other markets.
Brian Kreissl is the managing editor of Consult Carswell. He can be reached at [email protected]. For more information, visit www.consultcarswell.com.
