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 his or her ability to perform the job safely? The Quebec Court of Appeal considered this issue in CDPDJ v. Société de transport de Montréal

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

Factual background

In January 2012, the complainant was the victim of a road accident, following which he was diagnosed with a lumbar sprain. He was then put on sick leave and received income replacement benefits from the SAAQ (Québec’s Automobile Insurance Corporation). After being laid off by his employer, the complainant applied for a position as a bus driver with the employer, the Société de transport de Montréal (the “STM”). 

During the hiring process, the STM concluded that the complainant was medically unfit to work as a bus driver, based on the medical reports prepared following his road accident. These reports demonstrated that the complainant’s medical condition could prevent him from operating the pedals of a bus throughout a work shift, thereby exposing the driver and passengers to a significant risk of an accident. After reconsideration of, this decision, following the receipt of a new medical certificate described as “cryptic” and lacking detail; the decision was upheld and the process of hiring the worker was terminated. 

At trial, the Human Rights Tribunal upheld the STM’s claims, finding that there was no discrimination under the Charter of Human Rights and Freedoms (the “Charter”). 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 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 the present case, the STM demonstrated through medical evidence and by an analysis of the physical requirements for the position of “driver” that the disability justified their rejection of the complainant’s application. The latter could have presented medical evidence in an attempt to contradict the STM’s evidence but 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 of Appeal therefore sided with the employer. 

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 of result to bring customers safely to their destination (Art. 2037 C.C.Q.), 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. 

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 his or her 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.

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