In Liu v Everlink Services Inc, the Ontario Human Rights Tribunal decided that, when a Chinese Canadian employee, Liu, was terminated from his employment, he was discriminated against on the ground of place of origin.
What happened?
Liu had some performance reviews in 2010 and 2011, and he always did well in his performance reviews and received raises and bonuses. One of his personal development objectives was to improve his verbal and written skills in English. He was then given a development plan to assist him in reaching his expected level of proficiency. He had to complete certain online English as a second language courses and test and investigate other sources of assistance like night school or other online courses. In a follow-up in 2011, it was noted that there was an improvement in his written skills but there needed to be a significant improvement verbal skills.
In February 2012, members of management discussed terminating Liu due to perceived communication and English language difficulties.
By March 2012, Liu was asked if he had taken the English as a Second Language class, and when he said no, he was told he needed “to go”. Liu interpreted this to mean that he needed to leave his job, but the intention was to get him to sign up for a class.
Ultimately, in May 2012, Liu was terminated. He was told that his position was being eliminated and there was no other position for him in the company because he did not have the skills to take on any other position. Everlink then went through a re-organization in the spring of 2012.
According to Liu, he was terminated because of a plot to terminate him because of his accent and a lack of proficiency in speaking English.
According to Everlink, Liu was terminated because of the re-organization and resulting elimination of his position, and there was no evidence of a conspiracy by anyone in the company against Liu—Liu was prone to dramatic interpretations of the facts. Liu was not terminated for discriminatory reasons.
In response, Liu launched a human rights application alleging that Everlink discriminated against him because of his race, color, place of origin, and ethnic origin contrary to the Human Rights Code.
The Tribunal found that Liu’s perceived verbal communication difficulties in English were a factor in the decision to reorganize his position and terminate his employment. Based on the totality of the evidence, the perceived difficulties communicating verbally in English were a factor. When looking at the email exchanges between management, it could be seen what the intentions really were in the decision-making process to reorganize the company and terminate Liu. Also, Everlink failed to call certain witnesses who would have known the exact reason for the decision given that they were in human resources.
Although “language” is not technically a prohibited ground of discrimination and harassment under the Human Rights Code, it was clear that the decision to terminate was made at least in part because of Liu’s perceived verbal communication difficulties in English, and there was a nexus between the adverse treatment and place of origin.
Liu was from China and English was a second language. Also, Everlink was unable to justify the discrimination because it could not show that having a certain level of proficiency in English was required to do the job—it could not be shown that there was a bona fide occupational requirement. As a result, Everlink had to pay $15,000 in damages as monetary compensation for injury to his dignity, feelings and self-respect, in addition to lost wages.
What is the take away here?
“Language” may not be a prohibited ground of discrimination or harassment under human rights legislation, but that does not mean discrimination or harassment cannot be found in this type of situation. If an employee is adversely treated because (at least in part) of difficulties communicating in English, the prohibited ground of “place of origin” can be triggered, and if there is a connection between place of origin and the adverse treatment, discrimination will be found unless an employer can justify the discrimination
One way to justify adverse treatment in this type of case could be to show with evidence that it was necessary for an employee to have a certain standard (that was measurable) of English proficiency in order to perform a job, and it is was required as a bona fide occupational requirement to be able to work in the position (this would mean that the Meiorin test would have to be met).
Christina Catenacci, BA, LLB, LLM, Ph.D.
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