Je ne comprends pas workplace language laws in Canada

Canada is officially a bilingual country and boasts a highly multi-cultural workforce. Yet, it is not always clear what is and is not allowed when it comes to language in the workplace. Can employers require bilingualism? What about prohibiting the use of a language other than English or French in the workplace?

In this blog post, we cover some of the basic principles regarding language use in the workplace. If you have specific questions regarding your employment or workplace, please reach out to the Lee Workplace Law Team.

Different Provinces, Different Rules:

Since employment laws are largely provincially regulated, different provinces throughout Canada have adopted different approaches to dealing with language in the workplace. Below we have outlined some of the approaches adopted throughout Canada.

Ontario:

English is the official language of Ontario. As a result, employers are typically justified in requiring employees to be able to perform work duties in proficient English. But does that mean employers can prohibit employees from speaking another language during breaks? Or refuse to hire an employee with an accent?

Not without good reason. While Ontario's human rights legislation, the Human Rights Code, does not list language as a protected ground for which discrimination is prohibited, the Ontario Human Rights Commission has published guidance which suggests that treating employees adversely on language related grounds may still run afoul of our human rights law. That is because language is closely linked to other protected grounds, such as ancestry, ethnic origin, place of origin, and in some circumstances, race. For example, the Commission's Policy on discrimination and language suggests that threatening to terminate an employee for speaking another language during their break could constitute harassment contrary to the Human Rights Code.

Quebec:

On the flipside, French-language rights are important in Quebec. This is reflected in Quebec's latest language legislation, Bill 96 – An Act respecting French, the official and common language of Quebec. Among other things, this latest piece of legislation strengthens the rights of employees to use French in the workplace and prohibits employers from requiring employees to have knowledge other than French, with some limited exceptions. For more information on this topic, please check out our recent blog post Fundamentally French – Quebec imposes new rules and requirements relating to the French language.

Employers may not be able to require employees to speak a language other than French, but what about the reverse? Can they treat an employee adversely because they speak another language? The short answer is no. Quebec is unique and language is a specifically protected ground under Quebec's Charter of Human Rights and Freedoms, and an employee cannot be treated adversely due to the fact they may speak another language. That said, requiring the employee to perform work duties in French, or another language as may be applicable, may be justified if it is a necessary component of the job.

Other Provinces:

Other than Quebec, the only province or territory which specifically deals with language in their human rights legislation is the Yukon. Discrimination based on "linguistic background" is prohibited.

Despite that, language rights have been indirectly protected given the close relationship to other human rights protected grounds. For example, in British Columbia the Human Rights Code does not include language as a protected ground. The British Columbia courts have recognized, however, that language can be a proxy for other protected characteristics, such as place of origin and that refusing to allow someone to speak their first language in the workplace, without reasonable justification could amount to discrimination contrary to the Human Rights Code. Likewise, the refusal to employ someone based on language deficiency, where the ability to communicate in a particular language is not necessary to perform the job, could be discrimination.

In each case, it is necessary to assess the facts of the situation. A requirement that an employee have a certain level of language skills will not automatically be discriminatory. However, it is important to consider whether the language requirement is bona fide for the position, as well as whether the alleged discrimination based on language is actually linked to another human rights protected ground.

Federal:

For federally regulated businesses, the starting point is that language is not a protected ground under the Canada Human Rights Act. Accordingly, similar considerations as outlined above apply. Businesses must consider whether a certain language requirement is necessary for a given job and also whether any general language-based policies could indirectly be discriminatory based on a protected ground.

New considerations will soon apply to federal businesses operating in Quebec or another region with a strong francophone presence. On June 20, 2023, the federal government passed Bill C-13 which amends the Official Languages Act and enacts the Use of French in Federally Regulated Private Businesses Act. Once in force, federal business operating in Quebec or another region with a strong francophone presence will essentially have to comply with the French language requirements imposed on provincial, private employers in Quebec. Among other things, discrimination based on the use of French will be prohibited, employees will be entitled to receive all communications and documents in French and requiring knowledge of a language other than French will only be allowed if it is objectively required by reason of the nature of the work to be performed.

The date this new legislation will come into force is yet to be announced, as are the regions outside of Quebec that will be classified as having a strong "francophone presence".

Conclusion:

Employers and employees alike should carefully consider how language is dealt with in their workplace. While bona fide language requirements for a position can be justified in many cases, imposing arbitrary requirements or rules based on language may be offside human rights laws, even if language is not specifically listed as a protected ground.

For employers, this means considering whether language requirements are in fact necessary for the positions and ensuring language is not used as a proxy to discriminate based on a protected ground, such as place of origin or ethnic origin.

For employees, it is important to understand that employers are generally allowed to require a certain level of proficiency in the language required to perform the job. However, if you have concerns you are being unfairly treated because of your accent or proficiency in a second language, we would encourage you to seek legal advice.

Lee Workplace Law would be happy to answer any questions you may have about your workplace rights and obligations.