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The cost of discrimination and harassment: $65,000.00; the cost of a failure to investigate: $6000.00; legal lessons learned … Priceless.

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In the recent case of Islam v. Big Inc., 2013 HRTO 2009 (CanLII), the Human Rights Tribunal of Ontario ruled that a Toronto restaurant, Le Papillion on the Park (the employer), created a poisoned work environment by: a)  forcing three Muslim restaurant workers to eat pork despite knowing that it was against their religious beliefs to do so; b) mocking them for speaking Bengali and not properly applying its rule in relation to speaking English only;  c) referring to them as “shit,” and; d) threatening to replace them with “white” staff. The Tribunal found that one of the employees was terminated and did not quit as alleged by the employer and that the other two did not voluntarily resign but rather were forced to do so as a result of the poisoned environment in the workplace.

The Damages awarded for the above violations included payments for loss of wages; penalties for discrimination; injury to dignity feelings and self-respect; harassment; and penalties for the continuing stress caused by the failure to investigate the complaints of discrimination. The total amount awarded against this employer approached $100,000.00.

Many of the blatant violations engaged in by this employer are astounding to me in today’s day and age and have been the subject of many previous decisions. However, the violation in relation to the employers failure to properly institute a rule regarding speaking English in the workplace is one violation that I have not often seen appear in case law, and yet is often the topic of discussion between myself and Rubin Thomlinson’s employer clients.

English Language Only Rule

In this case, the complainants claimed that when they tried to speak Bengali to co-workers in the kitchen, Danielle Bigue (one of the owners of the restaurant) would mock them by saying “blah blah.” While the respondents had no written policy in regard to the use of English in the kitchen, Paul Bigue (the other owner) claimed that the unwritten communication policy was that English was the language of first choice throughout the restaurant and that the complainants were asked to use English whenever there were co-workers in the kitchen who could not speak or understand their language. The employer maintained that the rule that English was to be spoken in the kitchen was reasonable for safety, courtesy and efficiency purposes.

The Tribunal noted that, even though language is not specifically included as a ground of discrimination under the Code, it “has been accepted by this Tribunal as an aspect of ‘place of origin’ and ‘ancestry’ in cases in which adverse differentiation or adverse effect in employment has been associated with accent or language facility.”

The Tribunal determined that the workplace language rule in this case was not reasonably applied and did not meet the test of reasonableness. The Adjudicator, Keene, stated:

Two aspects of the respondents’ application of the rule cause me concern. First, when it appeared to her that the rule was being breached, Ms. Bigue made mocking comments on more than one occasion, amounting to harassment, rather than determining why the applicants were speaking Bengali (whether it was to instruct Mr. Islam), and thereby dealing with the situation as the application of a reasonable workplace rule by a reasonable employer.

The second issue related to the rule is how the respondents dealt with workplace friction arising from the use of Bengali. The respondents admitted that the use of Bengali by the applicants gave rise to friction between themselves and the applicants. The respondents were also aware that the use of Bengali gave rise to friction between the applicants and other employees. It appears that their sole response to this was to reiterate that English must be spoken and to make mocking comments, which further poisoned the working environment. Their failure to address with all staff the requirement for language accommodation in the kitchen and to work out appropriate compromises clearly also left the applicants vulnerable to the hostility of other employees.

Lessons Learned

It would be trite to list the obvious lessons to be learned from Le Papillion’s treatment of the employees in this situation (like don’t force Muslim employees to eat pork). However, the more obscure lessons relate to the implementation of English language rules in the workplace, which I believe are as follows:

a)      When a rule or standard (for example a rule that English only is to be spoken in the workplace) that is not directly discriminatory nevertheless results in the exclusion of a group of people identified by a prohibited ground of discrimination, such as creed, place of origin or ancestry and, where the rule cannot be justified as reasonable and bona fide in the circumstances, it will constitute constructive discrimination.

b)      Proficiency in a certain language may be a reasonable and legitimate requirement for employment. However, that requirement has to be established as a bona fide occupational requirement. 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.  See the Ontario Human Rights Commission’s Policy on Discrimination and Language.

c)      Employers are not entitled to set standards that are either higher than necessary for workplace safety or irrelevant to the work required, and which arbitrarily exclude some classes of workers.

d)     If a rule regarding use of English only in the workplace is instituted legitimately but nonetheless is broken by an employee, a reasonable employer makes sufficient enquiries to determine if there is a valid reason for breach of the rule (for example, was a different language spoken in order to ensure a worker understood his instructions? ) prior to disciplining for breach of the rule.

e)      If speaking English in the workplace is a legitimate (bona fide) requirement for employees yet there are employees who are deficient in this regard, the employer should consider providing training. The cost of English lessons for the individual employee is marginal in comparison to the cost of a human rights finding against the employer. Also, training to other employees to provide them with both tolerance and tools to be used to improve their own communication with individuals for whom English is a second language should be considered.

Patrizia Piccolo