Discrimination in hiring: What level of risk should an employer assume?

Should an employer proceed with a hiring process after learning that a candidate’s disability may affect their ability to perform the job safely? The Quebec Court of Appeal considered this issue recently in CDPDJ v. Société de transport de Montréal.

The Commission des droits de la personne et des droits de la jeunesse (CDPDJ) claimed that the employer had violated a job candidate’s right to equal access to employment by discriminating against him on the basis of his disability when it terminated the hiring process with the candidate due to his health condition. The Quebec Human Rights Tribunal and the Court of Appeal rejected these claims.

In January 2012, the job candidate was involved in a road accident, following which he was diagnosed with a lumbar sprain in his back. He went on sick leave and received income replacement benefits from the SAAQ (Québec’s automobile insurance corporation). After his employer laid him off, he applied for a position as a bus driver with the employer, the Société de transport de Montréal (STM).

During the hiring process, the STM concluded that the job candidate was medically unfit to work as a bus driver, based on the medical reports prepared following his road accident. These reports demonstrated that the job candidate’s medical condition could prevent him from operating the pedals of a bus over the course of a full work shift, thereby exposing the driver and passengers to a significant risk of an accident. After the STM received a new medical certificate that it described as “cryptic” and lacking detail, it reconsidered but eventually upheld its original decision, terminating the process of hiring the worker.

After a hearing, the Quebec Human Rights Tribunal upheld the STM’s claims, finding that there was no discrimination under the Quebec Charter of Human Rights and Freedoms. The tribunal determined that the STM’s decision was justified by virtue of an exception in Article 20 of the charter, which states that the exclusion of a candidate based on the aptitudes or qualifications required to perform a job is not discriminatory.

The Court of Appeal decision
In its analysis, the Quebec Court of Appeal pointed out that in order to successfully invoke this exception, the onus is on the employer to demonstrate that the exclusion of a candidate from a hiring process is based on a specific skill or quality required for this job.

In Société de transport de Montréal, the STM demonstrated through medical evidence and by an analysis of the physical requirements for the position of “driver” that the disability justified its rejection of the job candidate’s application. The job candidate could have presented additional medical evidence in an attempt to contradict the STM’s evidence, but he chose not to do so. Consequently, there was no reason for the Court of Appeal to question the STM’s analysis and evidence. The court, therefore, sided with the employer, STM.

In addition, the Court of Appeal addressed the question of what risk the STM should have to accept as an employer and provider of services to the public. Since the employer is a carrier bound by an obligation to bring customers safely to their destination, the court found that the circumstances justified a very low risk tolerance by the employer and ruled that the decision to refuse to hire the complainant was warranted in the circumstances.

Employer takeaway
This decision confirms the constitutional right of an employer to exclude a disabled candidate from a selection process if the candidate does not have the necessary skills and qualifications to perform their duties safely and effectively. An employer is not required to make special accommodations in such a situation. It goes without saying that, under the circumstances, the risk of being unable to operate the brake pedal on a crowded bus is severe and not one that an employer can accept. The ability of candidates to adequately perform their duties in a manner that is safe for themselves and the public is undeniably an important factor that employers must always keep in mind when assessing candidates during a hiring process.

For more information, see:

• CDPDJ v. Société de transport de Montréal

Marie-Hélène Jetté is a partner in the Montréal office of Langlois lawyers and head of the firm’s labour and employment law group. She can be reached at (438) 844-7832 or [email protected]. Xavier Berwald-Grégoire is a lawyer in the labour and employment law group at Langlois lawyers in Montreal. He can be reached at (514) 282-7803 or [email protected].