Is it a prohibited form of discrimination to pay a higher salary to employees who can speak both English and French than to those who can speak only English?

In Arnold v. Stream Global Services, 2010 HRTO 424 (CanLII), the Human Rights Tribunal of Ontario said “non”, deciding that paying bilingual workers significantly more than those who spoke exclusively English was not a prohibited form of discrimination.

Facts

The case concerned an English speaking applicant who worked at Stream Global Services (“Stream”), a contact services provider, with locations in Ontario, including a location in Belleville, Ontario.

Stream employed Technical Support Professionals to answer inbound telephone calls on behalf of Stream clients concerning desktops, portables, printers, handheld computers and other technological devices. English-speaking Technical Support Professionals answer inbound telephone calls on the English queue and Bilingual Technical Support Professionals answer inbound telephone calls primarily on the French queue. However, Bilingual Technical Support Professionals are also expected to provide technical support on the English queue when necessary.

It was accepted and agreed that all Technical Support Professionals perform the same duties. Reviews, metrics and contract goals are the same for all Technical Support Professionals.

From 2000 until 2006, the starting wage for an English-Speaking Technical Support Professional at Stream was $10.50 per hour, and the starting wage for a Bilingual Technical Support Professional at Stream was $10.50 per hour plus 10% language premium.

In approximately February 2006, English-Speaking Technical Support Professionals were advised that Stream was having difficulty finding coverage for the French queue and that as a result, Stream had to increase its starting rate for the Bilingual Technical Support Professionals in order to attract French-speaking employees.

In March 2006, Stream began recruiting Bilingual Technical Support Professionals with starting wages from $15.00 per hour to $18.00 per hour. In or about this time, Stream revised the pay structure for its existing Bilingual Technical Support Professionals. Stream removed the 10% language premium and instead Bilingual Technical Support Professionals had their starting wage increased to $15.00 per hour.

The applicant, who spoke only English, had worked for Stream for over seven years and was demonstrably none too thrilled about this disparity in pay. She filed an application to the Human Rights Tribunal of Ontario, alleging that her right to be free from discrimination in employment, as guaranteed by section 5 of Ontario’s Human Rights Code, had been violated.

Decision

In dismissing the application, HRTO Vice-Chair Kaye Joachim wrote the following:

[19] The Code does not specifically prohibit employers from making distinctions in employment on the basis of language. Most Ontario employers require that their employees speak English with a level of fluency commensurate with the work requirements. In some circumstances, such as the present, the employer also has need of employees with fluency in French in order to deal with Canadian or global customer demands.

 

[20] 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. Similarly, mocking a person who speak [sic] another language has been found to amount to a breach of the Code.

 

[21] However, this case does not engage any of the above circumstances or the prohibited grounds under the Code. The applicant admits and it is self-evident that workers who speak French possess a skill set that she does not possess. The undisputed statement of facts also establishes that the reason for the pay differential between workers in the French queue and workers in the English queue was the shortage of qualified French speaking candidates. In order to attract workers with French language capacity, the respondent offered a wage premium. The Code does not prohibit wage premiums based on skills sets, including French language proficiency. In a bilingual country where the English language dominates, proficiency in the French language is likely to be in demand.

 

[22] This is not a situation where the employees in the French queue are paid more because they have an ethnic origin linked to a French speaking place. They are paid more because they can speak French fluently and that skill set is required for the work they do. Regardless of their ethnic origin, place of origin, or ancestry, they are paid the premium wage because they are fluent in French.

 

[23] The applicant’s lack of fluency in French is not sufficiently linked to her place of origin, ethnic origin or ancestry to amount to a breach of the Code. The applicant and other Canadians from English speaking households are capable of becoming fluent in French and attracting the wage premium associated with this work.

 

[24] I find that the wage differential in question does not amount to discrimination on any prohibited ground in the Code.

As mentioned, in the result, the application was dismissed.

Commentary

As an employment lawyer who practices in the area of human rights law I am frequently asked whether certain actions amount to discrimination. As a lawyer practicing in Ottawa, the issue of ‘discrimination’ on the basis of language comes up not infrequently.

It is important to note that not all forms of discrimination are prohibited. Indeed, there a number of “discriminatory” acts that are not only not disapproved of, they are encouraged. It is important to note what is and is not a prohibited form of discrimination before starting a case.

In this case the issue was whether paying an employee, who possessed a much sought-after skillset, i.e. speaking the French language, was a prohibited act of discrimination. Ontario’s Human Rights Tribunal said no. The decision is not wholly shocking and was, in my opinion, correct.

Takeaways for Employers with Labour Pains

The takeaway for employers is that not all forms of discrimination are ‘illegal’. In some cases employers can treat employees differently based solely on who they are. Employers would be prudent, however, to always seek legal advice before taking any such course of action, lest they be accused of breaching the Human Rights Code.

If you are an employer in Ontario and are looking for experienced, pragmatic, and honest legal advice with respect to your workplace issues, the professional, experienced and cost-effective employment lawyers for employers at Ottawa’s Kelly Santini LLP would be happy to be of service to your business or organization.

Sean Bawden