A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

Who Runs The World? Well...

Who Runs The World? Well...

Canada is indisputably one of the most multicultural countries in the world. Toronto alone, based on some recent projects, has pockets of its population whose heritage represents every other country on Earth. Walking down the streets in a large, or even a smaller Canadian city, it is not uncommon to hear a multitude of tongues spoken in rapid conversation, signifying just how diverse this land has become. 

But what about in the workplace? When is it okay to speak another language, and when is it not?

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Late last month, a McDonald’s restaurant franchise in Yellowknife wound up in hot water after a manager posted an English-only workplace policy in response to ‘customer concerns.’ The owner of the franchise quickly reversed the policy after blowback, noting that it was insensitive, and how his restaurant welcomes everyone. 

The policy did not mince words. According to CBC news, it originally stated that "This is to be mindful of people who have no idea what your [sic] talking about and will reduce uncomfortability [sic] around other crew." The policy advised workers wishing to speak in their own language to ‘do so in the lobby,’ and that failure to abide by the new rules would result in stiff discipline, including potential dismissal.

Yellowknife occupies a particularly interesting position when it comes to linguistics. Aside from English and French, Northwest Territories is home to 11 official Indigenous languages, with others still spoken commonly by a number of the Yellowknife’s ethnic populations. 

So, what does the law say about all of this?

Human Rights 101

Under both Federal and provincial human rights legislation, language is not (at least in most provinces) a specifically protected ground where discrimination is strictly prohibited. Quebec, of course, has multiple regulations around language, and other provinces have some protections as well. In Ontario, though (where this blog is primarily focused), language is not amongst the Human Rights Code's protected (or enumerated) grounds. 

However, these laws do protect a number of grounds in which language is inherent, such as race, ancestry, and place of origin. In other words, employees who are harassed, singled out, or excluded simply because they speak another language may have strong grounds for making a human rights complaint. 

In order to demand that fluency in any language is required, the employer must prove that fluency is what employment lawyers call a BFOR, or a ‘bona fide occupational requirement.’ To have a BFOR, the job requirement must be imperative to the nature of the work, to the point where the employee would be unable to fulfill the role without meeting this threshold. 

This is not an easy test to meet. In other human rights scenarios, such as employees with a disability, the employer is required to accommodate an employee ‘to a degree of undue hardship,’ unless the employer can prove that the accommodation cannot be met because of a BFOR. For example, an employee with physical limitations may not be able to fulfill a job that requires heavy lifting if that heavy lifting is integral to the role and cannot be accommodated. 

So where does language fit the bill? Discrimination based on one’s spoken language, even if subtle or not related to a specific individual, may still be considered discrimination based on race, place of origin, ethnicity, or any of the other protected grounds. A poorly handled situation may rise to the level of harassment, or even potentially create a ‘poisoned work environment’ for which an employer is liable to face stiff penalties. 

That said, an employer most often does not have to demand that their employees be perfectly fluent in English. An employer must though ensure that their employees understand and follow health and safety regulations, and are able to keep themselves and their co-workers safe. If crucial communication between employees about safety measures needs to take place in English, then a level of English proficiency may well be considered a BFOR. In these instances, an English-only policy may survive the careful scrutiny of a human rights tribunal if challenged.

Practically Speaking

Not only is diversity one of Canada’s strongest assets, but it can be just as strong for a business as well. The ability to attract and serve customers in the language with which they are most comfortable can be a strong way to build long-lasting client relationships. Many businesses will advertise that they are proud to offer their services in other languages, and most often do so without repercussions.

As for the rhetoric about irritating other customers in the aforementioned scenario, this needs to be dealt with very carefully. Employers are allowed to set rules and policies about client engagement and interaction, and can create a model for employees to follow. For some customers, it may be uncomfortable to feel ‘left out’ of a foreign-language conversation between employees, particularly if the conversation is interpreted as mocking, or hostile. 

That said, these scenarios are usually better handled by rules about client and team engagement versus blanket linguistic bans. An employer is free to discipline an employee for treating clients in a mocking or hostile tone to matter what the language, however structuring a policy based on behaviour will raise fewer concerns about discrimination while achieving the same result. 

For employers, English-only policies, are rarely advisable unless they are absolutely (and objectively) necessary for your business. It is always better to be lauded for diversity in one’s organization than chastised and even penalized for a lack thereof. If client engagement or unnecessary chatter in any language is a problem with your workforce, an employment lawyer can help you create workplace policies that address these issues while avoiding unintentional accusations of discrimination. 

For employees, it may seem like a fine line in some situations, but it does not have to be complicated. If the employee can fulfill the legal requirements of the job (think safety, etc.) then proficiency in English may not actually be required. However, being harassed or bullied over one’s accent, or difficulty with sentence structure for example are instances of discrimination for which there are legal remedies. An employment lawyer can help analyze your specific situation, and determine the best way to proceed accordingly. 

The bottom line is that the next time Chris Tucker asks you if you understand the words that are coming out of his mouth, you should feel comfortable answering him honestly. 

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