Language Requirements at Hiring

No, unless specific conditions are met.

The adoption and coming into force in 2022 of the Act respecting French, the official and common language of Québec, SQ 2022, c. 14, strengthened the provisions of the Charter of the French Language, CQLR c. C-11, (hereinafter the “Charter”) governing language requirements at work and at hiring.

Section 46 of the Charter now provides the following:

"An employer is prohibited from requiring a person, in order for the person to be able to keep a position, or to obtain a position through, in particular, recruitment, hiring, transfer or promotion, to have knowledge or a specific level of knowledge of a language other than the official language, unless the nature of the duties requires such knowledge; even in the latter case, the employer shall first take all reasonable means to avoid imposing such a requirement.

An employer requiring knowledge or a specific level of knowledge of a language other than the official language for a position must, when publishing an offer to fill the position, indicate in the offer the reasons that justify the requirement." (emphasis added)

For example, an employer who, as part of a hiring process, requires a candidate to be proficient in English must first ensure that the performance of the duties of the position to be filled actually requires a justified knowledge of English and must be able to demonstrate that it has taken "all reasonable means" to avoid requiring such proficiency in English. The employer must also indicate, if he publishes the offer to fill the position, the specific reasons for requiring proficiency in English for the position.

In addition, section 46.1 of the Charter now provides that an employer is deemed not to have taken "all reasonable means" to avoid requiring knowledge (or a specific level of knowledge) of a language other than French if the employer did not, before requesting such a requirement, comply with one of the following conditions:

• It assessed the actual language needs associated with the duties;
• It made sure that the language knowledge already required from other employees was insufficient for the performance of those duties;
• It restricted as much as possible the number of positions involving duties whose performance requires knowledge (or a specific level of knowledge) of a language other than French.

As stated by administrative judge Jessica Laforest in the recent ruling of the Tribunal administratif du travail, the Charter must be interpreted broadly and liberally in order to achieve its purpose, which is to promote the use and protection of the French language (para. 34). Following this logic, the Tribunal specifies that the criteria set out in sections 46 and 46.1 of the Charter are cumulative for each language requirement relating to a language other than French (para. 35).

Failure to meet any of the above criteria would, among other things, expose the employer to a prohibited practice complaint under the Charter (sections 45, 47 and following).

The employer must therefore pay particular attention to its obligations under the Charter and must ensure that it does not minimize or trivialize the importance of legislative provisions to protect the French language.

Our labour law team is available to answer any questions you may have about the workplace provisions of the Charter.