Bill 96 amending the Charter of the French language: what employers need to know – Discrimination, disability and sexual harassment
On June 1, 2022, in its desire to strengthen the status of the French language in Quebec, the Government of Quebec received royal assent for its Bill 96, the Act respecting French, official and common language of Quebec. This law, which modifies the Charter of the French languageimposes new obligations on employers and most of these new obligations came into force on June 1st. Employers will therefore have to adapt their processes and practices to meet the new requirements.
While the bilingualism requirement was a common practice when posting a job offer in Quebec, employers will now have to comply with new stricter rules in this area. Even if the previous law already required employers to demonstrate that the performance of the tasks required the knowledge of a language other than French, employers must now meet the following three conditions:
- Perform an assessment to determine the actual language requirements associated with the tasks to be performed
- Ensure that the language skills of other staff are insufficient to perform these tasks
- Limit as much as possible the number of positions with tasks requiring specific knowledge or level of knowledge of a language other than the official language
If any of these three conditions are not met, the employer will be “deemed not to have taken all reasonable means to avoid requiring knowledge or a specific level of knowledge of a language other than the language official”. This will constitute a prohibited practice giving rise to a possible recourse by “the victim”.
However, it is specified that these obligations must not impose an unreasonable reorganization of the employer’s affairs.
The conditions also apply to promotions and transfers.
In addition, when knowledge of a language other than French is required in a job offer, the reasons for this requirement must be specified. The application form must also be readily available in French.
Previously, subject to the express will of the parties, employment contracts could be written in a language other than French. The practice was to insert a clause to this effect at the end of the contract.
Since Law 96 came into force, in the case of adhesion contracts (i.e. contracts in which all the essential clauses are imposed by the employer), the employer must first provide a French version of the contract so that the employee can read it and expressly agree to be bound by the English version. It should be noted that the employee must have easy access to documents and materials relating to working conditions in French.
Since June 1, the employer must communicate with its employees in French. All internal written communications must be in French, including offers of training, transfer, promotion or employment. This obligation extends even to post-termination communications. However, an employee may request to receive written communications in English.
Language-related harassment and discrimination
In addition, since June 1, 2022, employees have an explicit right to a workplace free from harassment or discrimination related to the use of French at work. Consequently, the employer has a duty of prevention and an obligation to take reasonable steps to put an end to behavior that violates this right.
It is important to remember that all businesses with 50 or more employees are subject to francization rules and must, in general, use French at all levels of the business. These companies must register with the Office québécois de la langue française and then carry out a linguistic analysis. If the company demonstrates that French is generally used at all levels, the Office québécois de la langue française will issue a francization certificate. Otherwise, the company must undertake a francization process by developing and following a francization program before being able to obtain its certificate.
As of June 1, 2025, three years after the entry into force of the new law, companies with 25 to 49 employees will also be subject to these same obligations.
In addition, companies with 25 or more employees will have to set up a committee responsible for analyzing and improving francization within the company if the Office so orders.
As of June 1, 2022, the government will no longer award contracts or provide grants to any company that violates the obligations set out in the Charter of the French language.
Fines for businesses for violating the law have also been significantly increased, ranging from $3,000 to $30,000 for a first offense, with each day of offense a separate offence.
The directors of the offending company will be presumed liable for the violation, subject to a reasonable due diligence defence.
The amendments to the Charter of the French languageclearly oblige employers operating in Quebec to make certain changes. The requirement to demonstrate that all reasonable means have been taken to avoid imposing bilingualism as a condition of employment is certainly something to ponder and risks provoking debate in the courts.
As for private sector companies under federal jurisdiction in Quebec, they will of course always be able to voluntarily comply with the obligations of the Charter of the French language. Alternatively, Bill C-13, introducing the Act Respecting the Use of French in Federally Regulated Private Businessesbeing adopted, will be the response of the federal Parliament to protect and promote the French language.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.