Diversity in the workplace has been, rightfully, embraced as an important social value. But it may be having unforeseen and perversely ironic legal consequences. The problem begins when large groups of foreign nationals converse in their shared language breeding resentment in others who don’t speak that language. In fact, deliberate use of language to exclude may be a form of racial and/or nationality discrimination; by the same token, it may be completely innocent behaviour even if it has the effect of making others feel excluded. While all of this might sound more like theoretical speculation than real-world problem, this situation has actually generated 2 different discrimination lawsuits in the past 6 months.
CASE 1: DISCRIMINATION CLAIM IS VALID
Situation: The board of a BC condo in which the majority of owners are of Asian descent begins conducting meetings and keeping minutes in Mandarin. No English translations are provided. Non-Mandarin-speaking owners complain of discrimination. The board denies the allegations and contends that even if they’re true, they wouldn’t constitute discrimination.
Ruling: The BC Human Rights Tribunal refuses to toss the case.
Reasoning: Exclusive use of a language not spoken by all may be a veiled attempt to exclude on the base of race and/or nationality, especially if that language isn’t one of Canada’s official languages, the Tribunal reasons. We’re not saying the condo board actually did discriminate, it explains, only that the owners had a valid theory of discrimination and deserved the chance to prove it [Kargut obo others v. Strata Plan BCS 802, 2017 BCHRT 269 (CanLII), Dec. 13, 2017].
CASE 2: DISCRIMINATION CLAIM IS INVALID
Situation: A Canadian-born Caucasian who speaks only English complains that her co-workers deliberately exclude her by speaking in their native Filipino throughout the entire work day. Then, when she gets her pink slip, she puts what she thinks is 2 + 2 together and sues for nationality discrimination.
Ruling: This time the BC Human Rights Tribunal does toss the case without a trial.
Reasoning: The Tribunal agrees with the Karqut theory that while the human rights code doesn’t specifically mention language, use of a foreign language to exclude may still be racial and/or nationality discrimination. The difference is that the employee in this case didn’t contend that Filipino was the only language used in the workplace they way the condo owners did with Mandarin in Karqut. There were English speakers in the workplace that the employee could talk to and there was no evidence that being left out of the Filipino conversations had any impact on her work performance [Blackwell v. New Life Health Management and others, 2018 BCHRT 83 (CanLII), April 10, 2018].