Since June 1, 2023, following a reform of the Charter of the French language (the “Charter”), Québec employers have had to adjust their recruitment practices to meet the new language requirements. This includes rules around job postings demanding that candidates speak a language other than French.
Requiring bilingualism for certain positions used to be common practice among Québec employers. Since the reform, employers must meet three conditions if they want to include such a requirement in their job postings:
- Actual language needs: Employers must determine whether candidates actually need to speak a language other than French to perform the duties of the job.
- Language knowledge among existing employees: Employers must ascertain that none of the existing employees can perform these duties.
- Number of positions requiring another language: Positions requiring languages other than French must be kept to a minimum.
Employers who fail to meet these conditions will be deemed in breach of the Charter and may be subject to legal complaints. In addition, job postings must clearly explain the reason why another language is required.
Kim c. Ultium Cam
On September 16, 2024, the Administrative Labour Tribunal (the “Tribunal”) rendered a key decision in Kim c. Ultium Cam to enforce employers’ new obligations under sections 46 and 46.1 of the Charter. In this case, a candidate filed a complaint concerning a prohibited practice under the Charter after not being hired for a job requiring languages other than French.
Facts: The employer published a job posting written in Korean only, requiring applicants to speak Korean and English. The posting did not explain why those two languages were relevant to the job. When the candidate submitted a French CV, the employer asked for an English CV and held the interview in Korean, even though the candidate started the interview in French.
Parties’ contentions: The complainant alleged that he notably did not get the job because of the language requirements. The employer argued that all three languages were needed to perform the duties of the job (including purchasing equipment from other countries and communicating with the employer’s Korean-speaking representatives and employees). The employer also insisted that the complainant’s candidacy had been rejected based on his skills and not on language grounds.
Tribunal’s analysis
To decide the matter, the Tribunal first established three questions for analyzing a complaint concerning a prohibited practice under the Charter:
1. Does the complainant benefit from a presumption of prohibited practice, or in other words, can one assume that requiring candidates to speak a language other than French is indeed prohibited under the Charter?
2. Can the employer prove that the duties of the job require the candidate to speak another language, and that all reasonable means have been taken to avoid including such a requirement in the posting?
If the answer to the first question is yes and the second question no, the Tribunal adds a third question:
3. Can the employer be exempted from the Charter by proving the complainant was rejected for reasons that had nothing to do with language?
Tribunal’s conclusions
The Tribunal began by reiterating that, under sections 46 and 47 of the Charter, for a candidate to benefit from a presumption of prohibited practice, they need to have:
a) Applied for a job posted by the employer;
b) Proven that the employer required candidates to speak or have a certain knowledge of a language other than French for the purposes of that job; and
c) Filed the complaint within 45 days after the occurrence of the practice complained of.
After analyzing the situation at hand, the Tribunal found that these conditions had been met, and that the presumption applied in this case.
Next, relying on the teachings of the Court of Appeal in Gatineau c. Syndicat des cols blancs de Gatineau inc., the Tribunal held that to rebut this presumption, the employer would have to demonstrate a “specific and well documented understanding of the actual constraints.” Concretely, the employer would have to provide evidence that (i) a language other than French was required to perform the duties of the job and that (ii) all reasonable measures had been taken to avoid including this requirement before the posting was published. The Tribunal concluded that the employer had provided no such evidence, and was accordingly in breach of the Charter.
Lastly, the Tribunal dismissed the employer’s argument that the candidate was rejected based on his skills and not for language reasons. According to the Tribunal, though such an argument can be used to rebut the presumption of a prohibited practice under the Act respecting labour standards, it cannot be used to rebut this presumption under the Charter.
Takeaways for employers
This decision is a crucial reminder that employers of all sizes ought to be careful when posting a job that requires candidates to speak a language other than French. They must be able to prove that this requirement is essential to the job, and that they have taken all reasonable measures to avoid making unfounded language requirements in their postings. This includes explaining the reasons for each language requirement, and keeping positions with such requirements to a minimum.
Before posting a job that requires a language other than French, case law provides some guidance on the questions employers should ask themselves: Will the candidate have to serve clients in another language? Will the position help develop new services and markets outside Québec? Are any essential training courses or manuals available in English only?
Per the second and third conditions laid down in section 46.1 of the Charter, employers must ascertain that no existing employee can perform the duties in the required language, either because they do not speak it well enough or because they cannot take on the extra workload.
If the employer fails to meet any of these conditions, the complaint will be accepted regardless of any evidence showing that language did not factor in the employer’s decision to reject the candidate.