As per the OHRC’s Policy on discrimination and language, although the Human Rights Code (“Code”) does not explicitly identify “language” as a prohibited ground of discrimination, the Human Rights Tribunal of Ontario may consider claims under a number of related grounds, such as ancestry, ethnic origin, place of origin and in some circumstances, race.[i] The 2010 matter of Arnold v. Stream Global Services offers an explicit interpretation of this policy.
On December 22, 2008, the applicant filed an application based on her place of origin or her ancestry. The applicant self–identified as an English speaking Canadian.[ii]
On February 24, 2010 the Tribunal held a Case Resolution Conference by teleconference with both parties in attendance.
The applicant had worked with the respondent for over 7 years as a Technical Support Professional on the English queue, offering inbound telephone support in English only. The starting wage at the time for all English only support professionals was $10.50 per hour, while bilingual Technical Support Professionals received a slightly higher language premium.
In March of 2006, the respondents began recruiting Bilingual Technical Support Professionals with a starting wage from $15.00 to 18.00 per hour, while the English speaking Technical Support Professionals, such as the applicant remained at their same wage.
The applicant alleged that as she performed the same work the only basis for the wage disparity would be language.
The respondent’s position held that there was a shortage of Bilingual Technical Support Professionals and that the higher wage was an incentive for bilingual speakers.
The Tribunal stated:
In some circumstances, where language is inextricably linked with one’s place of origin, the Code may prohibit some forms of discrimination linked to one’s language, such as speaking less grammatically or speaking with an accent: Segula, supra. Similarly, mocking a person who speak another language has been found to amount to a breach of the Code: Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 29 C.H.R.R. D/35 aff’d  O.J. No. 4019 (Ont. Div. Ct.).[iii]
The Tribunal pointed out that the matter at hand was distinguished from the above in that clearly the worker who spoke French possessed a skill set that the applicant did not.
Further, that the French employees were not paid more as they had an ethnic origin linked to a French speaking place, but rather because they could speak French fluently and that was a required skill for this job. The Tribunal stated that regardless of their ethnic origin, place of origin, or ancestry, they are being paid the premium wage because they are fluent in French.[iv]
The Tribunal ruled that the applicant’s lack of French was not sufficiently linked to her place of origin, ethnic origin or ancestry to amount to a breach of the Code, and that she was capable of becoming fluent in French and would then attract the same wage as the bilingual personnel.
The application was dismissed.
[i] OHRC’s Policy on discrimination and language 1996
[ii] Arnold v. Stream Global Services, 2010 HRTO 424, Para. 17
[iii] Ibid., Para. 20
[iv] Ibid., Para. 23