The Ontario Human Rights Tribunal recently found that when a Chinese Canadian employee was terminated from his employment, he was discriminated against on the ground of place of origin, and partly because of his lack of English proficiency.
Facts of the case
Yongbin Liu was born in China and came to Canada 10 years ago. He worked for Everlink Payment Services Inc. as a help desk support analyst on a part-time basis from June 1, 2009, to February 26, 2011, and full-time from February 27, 2011, to May 31, 2012.
Everlink provides services and technology to the financial industry.
On May 31, 2012, Everlink terminated Liu. He was told that his position was being eliminated due to reorganization and there was no other position for him in the company because he did not have the appropriate skills.
The employee filed a human rights complaint stating that the employer discriminated against him because of his race, colour, place of origin and ethnic origin contrary to the Human Rights Code. He believed he was terminated because of his accent and lack of proficiency in speaking English. He also claimed that one of his supervisors engaged in a course of harassing behaviour toward him by publicly berating him and denying him certain benefits.
Everlink maintained the decision to terminate Liu’s employment was part of a larger restructuring and not related to his language issues, and that there was no harassment.
Discrimination based on language
Liu was the sole help desk analyst. The job involved finding solutions to information technology problems encountered by other employees of Everlink. During his employment, he met the objectives on all four of his performance reviews and received a merit increase and incentive bonuses for two of those years. However, Liu acknowledged his English could be improved, and his supervisor, Steve Watkins, claimed there had been complaints about his English language skills.
After his 2011 performance review, Watkins prepared a development plan to assist Liu in improving his verbal and written skills in English, including a series of online English as a Second Language (ESL) courses and tests. However, another manager, Bruce Rice, was soon assigned to Liu and he did not follow up on the development plan set up by Watkins. In his subsequent review, Rice found that Liu met performance expectations.
Everlink argues that if the termination was as a result of poor language skills that were needed for Liu to perform his job, this termination was unrelated to any protected ground under the Human Rights Code, thus Liu’s complaint should be dismissed.
Although language is not a prohibited ground of discrimination under the Code, an employer may be able to establish that a certain level of English language proficiency is a bona fide occupational requirement for a given position. However, in order to do so, the employer must demonstrate the language requirement meets the following three-part test:
- It is rationally connected to the work performed.
- It was adopted with an honest and good-faith belief it is necessary for the fulfillment of a work-related purpose.
- It is reasonably necessary to accomplish a work-related purpose, and it would be impossible to accommodate an employee with the characteristics at issue without imposing undue hardship.
In the tribunal’s opinion, there may be circumstances in which an individual’s ability to speak English is connected to his or her place of origin, which is a protected ground under the Code. In the present case, the tribunal found there was a nexus between Liu’s place of origin and his perceived difficulties in communicating verbally in English. Being born in China, English is Liu’s second language and his difficulties of communicating in English stem from that fact. Despite Liu’s language difficulties, he clearly met the expectations of his job as he worked there for three years, graduating from part-time to full-time, succeeding in performance appraisals, and getting bonuses.
Without going into details, several email exchanges between management heads including HR indicated that Liu’s lack of English proficiency was a factor in the termination. However, Everlink failed to demonstrate that there was a language proficiency standard for an employee in his role, or that Liu had failed to meet any language standard.
The tribunal therefore concluded that Everlink had discriminated against Liu on the basis of his place of origin. He was awarded 11 months of lost wages and $15,000 as compensation for injury to his dignity, feelings and self-respect.
Liu claimed that during the course of his employment, Ray Boorman, who in 2012 became Liu’s final supervisor, bullied or harassed him on a number of occasions by ignoring Liu, never being friendly, blaming him for things that had nothing to do with him, and shouting at him in front of other employees. In his view, this treatment was unfair.
Additionally, Liu believed that he was denied certain benefits provided to other employees such as a long-distance data travel package. He wanted the package to use his Blackberry and computer during an upcoming vacation to China. He was told that no package would be purchased for him as the company had begun to buy such packages only for executives, managers and critical support staff. He was also advised that the company would like him not to take his Blackberry with him on his vacation. Liu received a further email stating that there was an informal policy that only managers and key employees were permitted to carry the company’s equipment outside of normal work hours or locations. He indicated that the company’s equipment was not to leave the province for legal reasons that he would not get into. The supervisor ended his email stating “Personally though, Yongbin take the vacation time… Without worrying about Everlink!”
According to the tribunal, although Liu felt that he was unfairly criticized when his supervisor raised his voice at him, these incidents did not amount to harassment under the Code. In fact, Liu could show no evidence that there was a link to any of the grounds protected under the Code. At most, this was a case of general bullying, not based on Liu’s ethnicity, and the tribunal does not have jurisdiction over general claims of unfairness.
Moreover, Liu was not discriminated against because of the long-distance package issue. The evidence given by Everlink was more credible, and there was no evidence to support Liu’s conclusion that his race, ethnic origin, or place of origin were factors in the decision to stick to a strict interpretation of the company policy to deny the package.
Not every instance of unfairness or perceived bad treatment results in a finding of discrimination at the Human Rights Tribunal, because there has to be a connection between that adverse treatment and a prohibited ground under the Human Rights Code. Credibility and an examination of the entire context are always considered in a human rights case. Sometimes the tribunal has to decide what happened after hearing drastically different stories, and asks what happened “on a balance of probabilities.”
However, making decisions about existing and potential employees based on English language proficiency can give rise to considerable liability. It is important for employers to avoid selection criteria that may discriminate based on how a candidate speaks (e.g., a requirement that a successful candidate have “unaccented” English language skills or English proficiency when no standards exists). If a position requires a specific degree of English language proficiency, have and apply an objective assessment that can pass the tribunal’s three-part test.
Dianne Markley, a professor at The University of North Texas (UNT), whose graduate research focused on how accents affect the hiring process, says it is “almost impossible to speak any language acquired later in life without an accent.” A UNT study showed “an incredibly strong statistical correlation between judging someone as cultured, intelligent, competent, etc., and placing them into prestigious jobs”, based on the lack of a readily identified accent.
According to Markley, an accent is “a pattern of pronunciation” that is different from whether a person uses language well and forms sentences correctly. “A person can speak flawless English, but an accent causes him or her to be seen as someone who can’t do the job.”
The requirement for English proficiency, and the degree of proficiency required, must bear an objective relationship to the essential requirements of the job, and be a bona fide occupational requirement that is imposed in good faith.
In these circumstances, the requirement for the position must focus on the particular language needed to function in the job, and not on the place of origin, ancestry, ethnic origin or race of candidates for the position.