Do You Speak My Language? Language Proficiency as a Potentially Unforeseen Human Rights Risk

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

Many employers which have business operations that require a high and proficient level of communication struggle with the English language abilities of their employees. Of course, establishing a rule or requirement that sets a certain standard of English proficiency for certain workplace tasks or jobs raises the question of whether a rule or requirement for language proficiency can run afoul of human rights principles and potentially be a breach of human rights law.

Specifically, most human rights legislation has a prohibition against discrimination in employment on the basis of race, ethnicity and place of origin. Notably absent from most, if not all, human rights laws in Canada is “language” or language proficiency.

The recent Ontario case of Liu v. Everlink Payment Services Inc., 2014 HRTO 202, provided the occasion for significant consideration of the issue of when language proficiency is a breach of human rights legislation and when it is not.

Mr. Liu was employed on the IT Helpdesk at Everlink. His job was to communicate straightforward IT fixes and solutions, internally to staff at the company regarding the corporate IT network. He was competent in that he had the knowledge to identify the solutions required by staff who phoned, but his English was sub-par because it was his second language and he spoke with an accent.

Mr. Liu was terminated as part of a downsizing. E-mail communications indicated that one of the reasons he was selected for termination in the downsizing related to his more limited ability to communicate clearly in English, and his failure to promptly remedy the communication gap through ESL training which he had slightly delayed in commencing.

The Human Rights Tribunal of Ontario confirmed that language is not a protected ground under the applicable human rights legislation. The Tribunal, however, went on to say that in circumstances where the language proficiency deficit can be attributed to or associated with a prohibited ground under the legislation (such as race, ethnicity or place of origin), a human rights complaint could be advanced.

The Tribunal found that the language proficiency gap played at least a part in the decision to dismiss Mr. Liu from employment. The Tribunal, however, recognized that there could be circumstances in which language proficiency is a bona fide occupational requirement (BFOR). In order to establish a BFOR, it must be demonstrated that the requirement for English proficiency has a true and provable connection to the work to be performed, was introduced in a good faith belief in the necessity of the requirement, and is a reasonably necessary requirement of the work to be performed.

In the Liu case, a BFOR was not available because Mr. Liu had competently done the job for some time, and had received a pay increase and bonuses in previous years. As a result, he was awarded $15,000 in damages plus lost wages for 11 months.

Tips for HR professionals

Where a language proficiency BFOR is contemplated, employers need to look closely at its necessity for the work performed. Consideration of whether there are people on the job who would be adversely impacted by the imposition of such a rule or requirement is important and, as a matter of due diligence, some remedial program should be made available to augment language proficiency and act as insurance if employees are adversely impacted by the rule or requirement.

On the hiring side, it is vital to limit language proficiency requirements to positions where such proficiency is truly a requirement of the work to be performed. Close attention to the level of proficiency required for different positions may be necessary in the diverse modern workplace, in order to mitigate against human rights risks that might be unforeseen.