Language Discrimination

Can an employer require employees to speak only a certain language in and around the workplace?  A related question is:  can an employer only hire employees with certain language skills?

It should be no surprise that the answer to these questions is – maybe.

Language of the Business

There is no doubt that an employer can, assuming there is a reasonable non-discriminatory basis for doing so, insist that employees carry on the business of the company in whatever language makes sense for that business. The employer is free to hire people based on their proficiency in this particular language and is entitled to take disciplinary measures against people who prove not to be sufficiently proficient in the language.

Social Interaction

There is a greater amount of doubt about the ability of an employer to insist that during the normal social interaction in the workplace only a certain language be used or that certain languages not be used.  There are two types of social interaction in the workplace:

  • chatter amongst employees while going about their work – for example workers performing laboring activities or working on an assembly line; and
  • chatter in a break room on company premises.

Social Interaction During Working Hours

Generally speaking, employers have more authority about the use of language for social purposes during the course of work.  It may be essential that all employees are able to communicate effectively with each other without language barriers.  It makes sense, for example, that an employer on a busy and dangerous construction site insists that all employees be able to and do communicate in English so that everyone is "on the same frequency" related to the commands, warnings, and other communications that are critical to the work.  The situation may be different for employees who are able, as part of their duties, to safely engage in chatter not for work purpose but perhaps to ease the boredom of a particular function.  In the latter case, there wouldn’t seem to be any reasonable business motive for insisting that employees only speak English or not speak another language.

Social Interaction in the Break Room

In the break room, it would be hard to justify any language restrictions.  The employees are on their own time and there wouldn’t seem to be any valid business reason for them to speak English or not speak any other language.

There is an exception to this, of course.  The exception is in situations where the use of the language is designed or intended to alienate other employees or to use that other language as a part of a bullying strategy.  For example, a group of employees could employ a language unknown to another employee in such a manner to make that employee believe that she is being ridiculed or perhaps even sexually harassed.  This is a difficult situation for any employer to manage.  However, it is not an adequate response to simply ban the use of a language other than English to prevent this type of potential bullying or harassment.

Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at [email protected].

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