This policy statement is based on the Ontario Human Rights Commission’s (OHRC) Policy on language and discrimination. The statement explains the relationship between the Ontario Human Rights Code (Code), language-based discrimination and French-language minority rights under other laws. In keeping with the Preamble of the Code, this statement aims to promote respect for the inherent dignity of Franco-Ontarians and their full participation in society without discrimination based on Code grounds related to language.
The statement reflects concerns raised by Francophone groups about differential treatment. Francophones,[1] whether racialized or not, say they sometimes experience harassment because they are Francophone when shopping in retail stores or when trying to access government services under Ontario’s French Language Services Act. Racialized Francophone youth report being adversely targeted by school discipline practices and racially profiled by police. Some say they are streamed into special education or less “professional” areas of study because they are perceived to have a developmental disability, or because of assumptions rooted in racism about their country of origin. Racialized Francophones report their French accent and written proficiency, tied to their country of origin and recent immigrant status, compounds the forms of differential treatment they experience in society and even within the Francophone community.[2]
Language and discrimination
On its own, language is not a prohibited ground of discrimination under the Code. However, both the OHRC’s Policy on discrimination and language[3] and jurisprudence recognize that language can be an element or factor in discrimination[4] based on related Code grounds such as ancestry, ethnic origin, place of origin, race, citizenship and creed.
We often associate the language a person speaks, or their accent and fluency in a language, with their ancestry or ethnicity or the place they are from. Some people even associate an individual or group’s language with race or creed. These associations can sometimes lead to stereotypical assumptions, prejudice and discrimination. For example, factors such as language and religion can contribute to a unique and complex experience of racial discrimination and harassment based on an intersection of multiple grounds.[5]
Treating people differently because of language in association with protected grounds in areas like employment, services, and housing, can be discrimination under the Code. There are some exceptions under the Code for membership and employment in special interest organizations that serve the needs of a particular community.
Differential treatment based on language is not discriminatory when unrelated to any Code ground. For example, an organization might show that proficiency in a certain language is a legitimate requirement related to job performance and/or service delivery.[6]
Francophones and discrimination
Like other language groups, Francophones can experience discrimination if they are treated negatively because of assumptions about their language that connect or intersect with their ancestry, ethnic origin, place of origin, race or creed, or other grounds. The Human Rights Tribunal of Ontario (HRTO) has accepted claims where language was an alleged factor related to one or more Code grounds. In one case, a tribunal found employees repeatedly harassed a co-worker because he was a Francophone and a Black person of Haitian origin.[7]
Francophones, like other non-anglophone groups, can experience other forms of social disadvantage and systemic discrimination compounded by language. Examples include: racial profiling in the criminal justice system; harassment and violence against women; differential treatment towards newcomers and barriers to employment such as Canadian work experience requirements for foreign trained workers.[8] Prejudice and discrimination can also be rooted in historic and ongoing tensions between and within language communities.
Unlike other non-anglophone language groups, Francophones have official language minority rights under the Constitution and other federal and provincial laws.[9] Legal recognition of official language minority rights has advanced considerably after a long history of marginalization and a struggle for linguistic and community survival. The impact of that legacy continues today, and along with an increasingly diverse and urban Francophone community, affects the forms of discrimination that Francophone people can experience.[10]
Differential treatment can relate to public perceptions about minority language rights or related socio-political events like constitutional talks and referendums. Differential treatment might also occur because of an intersection between French language minority rights and human rights legislation when Francophones try to exercise these rights together. For example, students with disabilities in the French language education system have reported difficulty accessing special education services and specialists in their language in accordance with the Education Act and the French Language Services Act.[11] Francophones also claim that a lack of mental health and addiction services in French can compound their disability and diminish their power to advocate for themselves and benefit from treatment.[12]
Rights and responsibilities
Organizations have a legal duty to maintain an environment free from discrimination and harassment, including when language may be a factor associated with grounds protected under the Code. They must investigate complaints and take steps to prevent and respond to violations of the Code.
People who believe they have experienced discrimination or harassment based on their language should try to raise the matter with the organization involved. They can ask the Human Rights Legal Support Centre for advice or make a complaint – called an application – to the HRTO within one year of the last alleged incident.[13]
[1] Definition of francophone: of, having, or belonging to a population using French as its first or sometimes second language. Merriam-Webster, online: www.merriam-webster.com/dictionary/francophone.
[2] The OHRC heard about these concerns when it met with Francophone organizations during its 2016 strategic planning consultation. Other concerns raised include how language barriers and racism worsen the situation of women who experience harassment and violence. Members of the Métis Nation report discrimination tied to their unique Indigenous and French heritage. Francophone immigrants in the LGBQT community recount experiences of discrimination, especially in housing. Many of these factors contribute to “racialized” poverty especially for francophone newcomers. Lack of human rights education and awareness about unique intersecting forms of prejudice, language and discrimination affect the ability of Francophones to redress their rights and the ability of organizations to promote and protect rights.
[4] Discrimination can include harassing comment or conduct, as well as organizational rules or practices that have a negative impact. Left unchecked, it can also lead to a poisoned environment.
[5] See the OHRC’s Policy on racism and racial discrimination. Also see the OHRC’s Policy on preventing discrimination based on creed.
[6] There are cases where the HRTO has found that disadvantage resulting from an inability to communicate in a particular language is insufficient to establish a claim of discrimination. In Arnold v. Stream Global Services, a case relating to an employee’s lack of fluency in French, the HRTO noted that Arnold, who self-identified as an “English-speaking Canadian,” had not established a sufficient link between her lack of fluency in French and her place of origin, ethnic origin or ancestry to establish a breach of the Code (Arnold v. Stream Global Services, 2010 HRTO 424). The HRTO has repeatedly held that the onus is on an applicant to adduce evidence that could lead to a finding that a respondent used language as a proxy for a Code ground, for example that the respondent’s actions reflected a negative view of the applicant’s ethnic origin (Tesseris v. Pellark Dental Centre, 2014 HRTO 101 at para. 26.)
[7] Etienne v. Westinghouse of Canada Ltd. (1997), 34 C.H.R.R. D/45 (Ont. Bd. Inq.). In another case, a tribunal concluded that a landlord’s refusal to accept a cheque written in French by a Francophone tenant constituted discrimination because of that tenant’s ancestry (A. v. Colloredo-Mansfeld (No. 3) (1994), 23 C.H.R.R. D/328 (Ont. Bd. Inq.). Similar conclusions – that discrimination because of one’s language can be linked to one’s ancestry, place of origin or ethnic origin – have been reached on a number of occasions,[7] including the 2015 HRTO decision in Christie v. Trent University (2015 HRTO 937). Most recently, in Landriault c. Champlain (Canton), the HRTO indicated that if a claimant cannot establish that a person’s language is “intrinsically attached” («intrinsèquement rattachée») to their ancestry, place of origin or ethnic origin, then differential treatment because of their language is not protected by the Code (Landriault c. Champlain (Canton), 2016 HRTO 846).
[8] During its strategic planning consultation, the OHRC heard about racialized Francophones experiencing employment barriers related to work culture, Canadian work experience requirements, being “overqualified” and foreign professional accreditation. Francophones also report not getting certain jobs because their bilingualism is perceived as an unfair advantage, or are blocked from moving to other jobs because their bilingual skills are needed.
[9] Francophones in Ontario and elsewhere in Canada have French language rights recognized in federal and in some provincial laws. For example, the Canadian Charter of Rights and Freedoms recognizes that official language minorities, like Francophones in Ontario, have the right to primary and secondary education instruction and facilities in their language. Ontario’s Education Act confirms these rights. The Ontario French Language Services Act provides that Francophones can expect government and certain public sector services in French in designated areas of the province.
[10] See Understanding the French Experience in Ontario, Ontario Heritage Trust, 2012. Online: www.heritagetrust.on.ca/corporatesite/media/oht/pdfs/hm-se-may-2012-eng.pdf.
[11] The OHRC heard about these concerns during its 2016 strategic planning consultation Also see Lang v. Ontario (Community and Social Services), 2003 HRTO 8, an interim decision that examined the interaction between the French Language Services Act and the Human Rights Code. The case eventually settled without a final hearing or decision.
[12] See section 9 of Minds that Matter, the OHRC’s 2012 report on its consultation on human rights, mental health and addictions: www.ohrc.on.ca/en/minds-matter-report-consultation-human-rights-mental-health-and-addictions.
[13] The HRTO is an independent quasi-judicial (court-like) body that hears and makes decisions on claims of discrimination and can order financial or other remedies.