Arnold v. Stream Global Services, 2010 HRTO 424

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jane Arnold

Applicant

-and-

Stream Global Services

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: February 24, 2010

Citation: 2010 HRTO 424

Indexed as: Arnold v. Stream Global Services

1This is an Application filed on December 22, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The parties submitted an agreed statement of facts and made oral submissions on February 22, 2010 by teleconference.

Agreed Statement of Facts

2Stream Global Services (“Stream”) is a contact services provider, with locations in Ontario, including a location in Belleville, Ontario.

3Stream employs Technical Support Professionals to answer inbound telephone calls on behalf of Stream clients concerning desktops, portables, printers, handheld computers and other technological devices.

4English-Speaking Technical Support Professionals answer inbound telephone calls on the English queue and Bilingual Technical Support Professionals answer inbound telephone calls primarily on the French queue. However, Bilingual Technical Support Professionals are also expected to provide technical support on the English queue when necessary.

5Technical Support Professionals on both the English queue and the French queue are required to record call logs and case notes in English.

6All Technical Support Professionals perform the same duties. Reviews, metrics and contract goals are the same for all Technical Support Professionals.

7Periodically a telephone call may be misrouted and a French telephone call may be answered by a Technical Support Professional on the English queue. If this occurs, the Technical Support Professional is expected to do their best to provide technical support to the French-speaking customer in English.

8The applicant, Jane Arnold, has been employed by Stream at its Belleville location since August 8, 2000 as Technical Support Professional on the English queue.

9At Stream, the applicant has been providing technical support for a major computer manufacturer for over seven years.

10The applicant has never applied for a position as a Bilingual Technical Support Professional at Stream. The applicant is not Bilingual.

11From 2000 until 2006, the starting wage for an English-Speaking Technical Support Professional at Stream was $10.50 per hour.

12From 2000 until 2006, the starting wage for a Bilingual Technical Support Professional at Stream was $10.50 per hour plus 10% language premium.

13In February 2006, the English-Speaking Technical Support Professionals were told that they would not receive a pay increase because of economic reasons. The starting wage for English-Speaking Technical Support Professionals remained at $10.50 per hour for 2006.

14In or about the same time, English-Speaking Technical Support Professionals were advised that Stream was having difficulty finding coverage for the French queue and that as a result, Stream had to increase its starting rate for the Bilingual Technical Support Professionals in order to attract French-speaking employees.

15In March 2006, Stream began recruiting Bilingual Technical Support Professionals with starting wages from $15.00 per hour to $18.00 per hour.

16In or about this time, Stream revised the pay structure for its existing Bilingual Technical Support Professionals. Stream removed the 10% language premium and instead Bilingual Technical Support Professionals had their starting wage increased to $15.00 per hour.

Analysis and Decision

17The applicant submits that she performs the same work as the employees in the French queue and therefore the only basis for treating the workers in the English Queue differently is language. She alleges that her language proficiency is related to her place of origin or her ancestry. She self-identifies as an English speaking Canadian.

18The respondent submits that language is not a prohibited ground of discrimination under the Code. The respondent acknowledges that in some circumstances where a person’s language proficiency or accent is inextricably linked or associated with their ethnic origin, place of origin or ancestry, the Tribunal may find a breach of the Code: Segula v. Ferrante (1995), 1995 CanLII 18168 (ON HRT), 27 C.H.R.R. D/412. However, this is not one of those cases.

19The Code does not specifically prohibit employers from making distinctions in employment on the basis of language. Most Ontario employers require that their employees speak English with a level of fluency commensurate with the work requirements. In some circumstances, such as the present, the employer also has need of employees with fluency in French in order to deal with Canadian or global customer demands.

20In some circumstances, where language is inextricably linked with one’s place of origin, the Code may prohibit some forms of discrimination linked to one’s language, such as speaking less grammatically or speaking with an accent: Segula, supra. Similarly, mocking a person who speak another language has been found to amount to a breach of the Code: Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 aff’d [1998] O.J. No. 4019 (Ont. Div. Ct.).

21However, this case does not engage any of the above circumstances or the prohibited grounds under the Code. The applicant admits and it is self-evident that workers who speak French possess a skill set that she does not possess. The undisputed statement of facts also establishes that the reason for the pay differential between workers in the French queue and workers in the English queue was the shortage of qualified French speaking candidates. In order to attract workers with French language capacity, the respondent offered a wage premium. The Code does not prohibit wage premiums based on skills sets, including French language proficiency. In a bilingual country where the English language dominates, proficiency in the French language is likely to be in demand.

22This is not a situation where the employees in the French queue are paid more because they have an ethnic origin linked to a French speaking place. They are paid more because they can speak French fluently and that skill set is required for the work they do. Regardless of their ethnic origin, place of origin, or ancestry, they are paid the premium wage because they are fluent in French.

23The applicant’s lack of fluency in French is not sufficiently linked to her place of origin, ethnic origin or ancestry to amount to a breach of the Code. The applicant and other Canadians from English speaking households are capable of becoming fluent in French and attracting the wage premium associated with this work.

24I find that the wage differential in question does not amount to discrimination on any prohibited ground in the Code.

25The Application is dismissed.