Conner LantzKeymasterAugust 11, 2023 at 6:36 amPost count: 4836
We are wondering if we are legally allowed to have an English only (spoken) in the workplace policy. Mostly for inclusion and safety reasons. We have had issues in the past when people think they are being spoken about in another language. Also if there is a safety or other concern all people should know about it and hear about it.
ThanksConner LantzKeymasterAugust 11, 2023 at 6:37 amPost count: 4836
That’s highly problematic under human rights laws because it excludes entire groups based on national origin. That means you’d have to justify it as what’s called a bona fide occupational requirement (BFOR), for example, not hiring a person to drive a truck because he’s blind. To make out a BFOR defence you must show the policy:
- was adopted for a purpose that’s rationally connected to job performance
- was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose
- is reasonably necessary to accomplish that legitimate purpose-This requires the employer to demonstrate that it is impossible to accommodate the employee without the employer suffering undue hardship
Prongs 1 and 2 are pretty easy because safety is a legit purpose and a case can be made that English-only serves that purpose. But as is usually the case in a BFOR situation, Prong 3 is the hard part. Basically, the question that will be asked is whether there were less discriminatory ways to accomplish the safety objective, i.e., ensuring proper communication. Maybe you could have provided bilingual instructions or used nonverbal signs or signals. So, they’re going to ask you to prove that you considered these alternatives/accommodations. And then they’re gonna ask why you decided not to adopt them. To pass scrutiny, you’ll have to show that the alternatives would have imposed undue hardship. Maybe they cost millions of dollars; maybe they would have required you to lay off people; etc. But undue hardship is a tough thing to prove.
Bottom Line: Don’t do the English-only policy without first talking to a lawyer and walking through the 3-part BFOR test. And don’t put the policy into effect unless and until the lawyer verifies that you’re on solid ground for all 3 prongs.
HERE’S SOME GUIDANCE FROM ONTARIO HUMAN RIGHTS COMMISSION: Language and discrimination
On its own, language is not a prohibited ground of discrimination under the Code. However, both the OHRC’s Policy on discrimination and language and jurisprudence recognize that language can be an element or factor in discrimination based on related Code grounds such as ancestry, ethnic origin, place of origin, race, citizenship and creed.
We often associate the language a person speaks, or their accent and fluency in a language, with their ancestry or ethnicity or the place they are from. Some people even associate an individual or group’s language with race or creed. These associations can sometimes lead to stereotypical assumptions, prejudice and discrimination. For example, factors such as language and religion can contribute to a unique and complex experience of racial discrimination and harassment based on an intersection of multiple grounds.
Treating people differently because of language in association with protected grounds in areas like employment, services, and housing, can be discrimination under the Code. There are some exceptions under the Code for membership and employment in special interest organizations that serve the needs of a particular community.
Differential treatment based on language is not discriminatory when unrelated to any Code ground. For example, an organization might show that proficiency in a certain language is a legitimate requirement related to job performance and/or service delivery.
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