Discrimination in the hiring process

The Charter of Rights and Freedoms guarantees the rights of candidates applying to an employer as part of the hiring process[1].

In such a process, and in the choice of questions put to the candidate, a balance must be struck between the candidate’s fundamental rights and the employer’s duty to protect the health and safety of its employees and customers.

Jurisprudence has established certain obligations for the employer, who must respect its duty of reasonable accommodation. It has also placed certain limits on the questions that can be asked of a candidate as part of the hiring process.

In Commission des droits de la personne et des droits de la jeunesse (T.J.R .) c. Attorney General of Québec (Sûreté du Québec)
[2]
), the Court of Appeal concluded that the refusal to hire a candidate who had lied about his state of health was not discriminatory.

At the end of the process, which included a medical questionnaire, the complainant was promised a job as a police officer. Subsequently, it was brought to the Employer’s attention that the plaintiff was suffering from Tourette’s syndrome, which he had not declared on the medical questionnaire, as required.

The Employer terminated the promise of employment, as the bond of trust had been broken due to misrepresentation.

The Court of Appeal emphasized the Employer’s right to ensure that a candidate possesses the aptitudes and qualities required to perform the tasks assigned to him in a manner that is safe for himself and for others. The onus is on the Employer to demonstrate that the information on the pre-employment questionnaire is required for a purpose rationally connected to the performance of the job and is necessary to achieve that legitimate work-related purpose[3]. Consequently,the medical questionnaire must be tailored to the tasks to be performed for the specific position for which the candidate is applying.

The Court of Appeal concluded that even if the question the plaintiff had to answer, i.e. to declare any health condition he was affected by, was overly broad and discriminatory, the plaintiff had a duty to answer it, since he owed a duty of good faith to his potential future employer.[4]. She confirmed that the plaintiff’s voluntary omissions “This is particularly true when the notions of good character and integrity are at the heart of the qualities sought in the candidate.[5]. In short, the dismissal was justified on the grounds of misrepresentation, not health.

Moreover, the Tribunal confirmed that even if the complainant considered himself cured, or that his condition was not “serious”, it was not up to him to determine what was or was not important in the eyes of the employer. He had to reveal his health condition[6].

The issue was considered again in CDPDJ (Samson-Thibault) v.. Québec City[7].

In this decision, the City of Québec based its refusal to hire the plaintiff for the position of firefighter on his disability, i.e. his difficulty distinguishing between the colors red and green (color blindness).

The Human Rights Commission alleged that the complainant had been discriminated against on the basis of disability in the selection process, in violation of his Charter rights[8].

The first step in such a debate is to analyze whether the requirement demanded by the Employer actually constitutes a standard required for a purpose rationally connected to the performance of the firefighter’s job[9]. The Tribunal concluded that this was the case, since the City had demonstrated that the purpose of the requirement to distinguish colors was to ensure the safe and efficient performance of the work, i.e. firefighting.[10].

The second step is to assess whether the Employer has met its duty of reasonable accommodation. To be released from its duty to accommodate, the employer had to show that hiring a candidate with color-blindness constituted an undue hardship for the employer, i.e. a serious or excessive risk to safety. The Tribunal stressed the importance of an individualized assessment of each candidate with a disability: “an individualized analysis is necessary, as opposed to a generic assessment ‘made on the basis of the impairment rather than on the basis of the individual’” [11].

To this end, the complainant already held a job as a firefighter in another city, and had developed several methods enabling him to compensate for his handicap, which should have been taken into account by the Employer. The exclusion of a candidate on the grounds of disability may not be based on preconceived ideas “without regard to the candidate’s actual abilities and his or her ability to compensate for them by means developed through experience”.[12].

The Tribunal found that the City had not met its burden of establishing undue hardship, and characterized its failure to give him the opportunity to demonstrate that he did not present an undue safety risk to himself and others as a procedural default.[13].

The Tribunal then turned to the discriminatory information required on the pre-employment medical questionnaire. He reiterated the words of the Court of Appeal in the above-mentioned decision CDPDJ (T.J.R.) v.. Attorney General of Québec (Sûreté du Québec)This was not the case here (the questionnaire was generic in nature).

The Tribunal therefore ordered the City to hire the complainant and pay compensatory damages.[14].

In conclusion, the Employer must always bear in mind that the questions asked in a pre-employment questionnaire must be justified in terms of the specific job for which the candidate is applying. When dealing with a candidate with a disability, it is essential to carry out an individualized assessment of his or her real abilities.

[7] Commission des droits de la personne et des droits de la jeunesse (Samson-Thibault) v. Québec City2023 QCTDP 2.

[10] Ibid. supra note 7, par. 85-87.

[11] Id.,par. 142.

[12] Id. at par. 291.

[13] Id. at par. 175-181.

[14] 10,000 in compensation for the moral prejudice suffered as a result of the refusal to hire and $2,500 in compensation for the moral prejudice suffered as a result of the discriminatory questionnaire.