In anticipation of next term’s Employment Law course, here’s a fun question that’s been in news over the holidays that I leave you with. If you have thoughts, send them along through the comment feature.
The Montreal Canadiens recently fired their coach and replaced him with a guy (Cunneyworth) who does not speak any 
French. This caused a huge uproar in Quebec, causing the owner of the team to hold a press conference and announce that Cunneyworth is in fact only an “interim” coach, and that a real job search would be done. In choosing the new coach, according to the owner, the “ability of the head coach to express himself in both French and English” would be a “very important factor”. In other words, we will give preference to a Francophone because the fans want that. In fact, they insist. The Quebec media has gone further, and is claiming that what the organization is really saying is that they will give preference to Francophones (being able to speak some French isn’t enough).
Is that lawful? Well, maybe. Any Quebec lawyers want to chime in on how Quebec human rights laws would deal with this? What if the Canadiens fire Cunneyworth to replace him with a Francophone–which may indeed happen. Would the Canadiens be unlawfully discriminating against him?
For my students, let’s flip it around. Assume the Toronto Maple Leafs said they would only hire an Anglophone as coach, because the Toronto fan base would not tolerate a Francophone coaching the Leafs. Would that violate the Ontario Human Rights Code?
As always, you begin with the list of prohibited grounds in section 5:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability
Is a requirement to speak English or to be from English-speaking Canada caught by any of these grounds? What if the rule effectively eliminates candidates from
French-speaking Quebec (as the Canadians’ preference for Francophones would tend to eliminate most people who come from English Canada? [I did a post on this a couple of years ago, but I haven’t yet updated my case search]
Now, assuming that giving preference to English-speaking coaches is caught by a prohibited ground, is there any defense or exception available that would permit the Leafs to hire only coaches who are English speaking or Anglophones?
Do any of the exceptions in Section 24 apply? Section 24(1)(b) provides some exceptions in the case of direct discrimination, but that only applies to sex, marital status, age, and record of offence, so that wouldn’t apply. How about Section 24(1)(a)? That doesn’t seem to apply either, since the Leafs are a for profit entertainment company, not an educational, religious, or social institution. None of the other parts of Section 24 seem to apply either.
How about section 11? That is the indirect or ”constructive” discrimination section. Would a rule saying you must be Anglophone or English speaking to get this job be covered by this section? Constructive discrimination occurs when a rule is neutral on its face–treats everyone the same–but has an adverse impact on some people on the basis of a prohibited ground. I guess you could argue that the Leafs are saying English is a requirement of the job, and this has an adverse impact on French-speaking people.
So look what Section 11 says. It says that a rule that has an adverse impact on French-speaking candidates is not illegal if speaking English is:
a requirement, qualification or factor is reasonable and bona fide in the circumstances
So, the Leafs would need to argue that being able to speak English is necessary to be the coach of the Leafs, just as the Canadians seem to believe that French is necessary to coach the Canadians. Though, clearly it isn’t, since their coach right now doesn’t speak a word of French. In fact, there are lots of players in the NHL who don’t speak English or French, at least when they first get here from Russia, Sweden, et cetera. Presumably, the coaches work around that by having translators. NHL teams can afford translators.
Ah, translators. That brings me to the next part of Section 11, part (2), which says this:
The Tribunal… shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Would it cause the Toronto Maple Leafs undue hardship to provide a translator for a Francophone coach, so his words can be understood by non-French speaking media, fans, and players?
What do you think? Ponder that as you sip your champagne. Salutations, and see you in 2012!