Does the absence of a promise to hire prior to a medical examination that a future employer wishes to impose on a candidate constitute a discriminatory practice prohibited by section 18.1 of the Charter of Human Rights and Freedoms (the “Charter”)?
This was one of the issues raised before the Tribunal des droits de la personne in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bathium Canada Inc.
For several employers in Quebec, this judgment was highly anticipated as a good number of them could have been ordered to modify their hiring practises as a result of the judgment in this matter.
So, how did the Tribunal des droits de la personne rule?
Since nothing in the Charter defines the moment when a pre-hiring medical examination should be imposed where it is required to determine whether a candidate has the aptitudes and qualities required for a job position, there is no obligation to first offer a position to the candidate conditional upon success in the test.
I– The Facts
Bathium is an international company that manufactures, sells and distributes lithium batteries. At the relevant time of events, Bathium was recruiting 200 employees as it was in an intense production phase to deliver batteries upon a specific date.
Due to the need to have certain technical aptitudes and good manual dexterity, Bathium required candidates to undergo a medical examination once the interview was passed with success.
The complainant was convened for an interview, which was successful. He was telephoned thereafter and invited for a pre-hiring medical examination. At this time, no job offer, either conditional or unconditional, was offered to the complainant.
Subsequently, based on the medical test completed, his application was not successful. The final medical document issued by the clinic who examined the complainant reported that he was in excellent health, but suffered from “morbid obesity”.
The complainant filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”), alleging that he, inter alia, was a victim of discrimination in hiring due to a visible handicap (his “morbid obesity”).
At the hearing before the Tribunal, the parties made certain admissions and agreed that it was not the refusal to hire which was under challenge, but rather the administration of the pre-hiring medical examination by Bathium without a formal offer to hire conditional upon this medical examination.
The Commission viewed this manner of proceeding as discriminatory. An employer has to agree to hire a candidate subject to success of the medical examination that it is imposing. Otherwise, the employer would be free without it being said expressly, to solely hire candidates who are in perfect health. For the Commission, this manner of proceeding is inconsistent with the progressive interpretation that should be given to the Charter.
II– The Decision of the Tribunal des droits de la personne
18.1. No one may, in an employment application form or employment interview, require a person to give information regarding any ground mentioned in section 10 unless the information is useful for the application of section 20 or the implementation of an affirmative action program in existence at the time of the application..
20. A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.
In the view of the Court, when Parliament wishes to prohibit a specific practice during the course of a hiring process, for example the use of medical examinations without any conditional offer prior to hiring, it so stipulates by express provision. In this regard, the Tribunal refers to the Americans with Disabilities Act, anAmerican statute which specifically provides that a pre-hiring medical examination cannot be imposed on a candidate unless and until a conditional job offer has been presented.
The Tribunal next analysed parliamentary debates which took place during the adoption of section 18.1 of the Charter. Nothing therein appeared to support the position argued by the Commission.
Next, the Tribunal mentioned that it is true that the Charter should generally be interpreted in a progressive manner, but “that doesn’t mean that you can add to the text”.
It stated its argument in this regard as follows: “If Parliament had wished to provide for a special mechanism concerning pre-hiring medical examinations, they would have done so”. It concludes as follows:
 Consequently, the conclusion soliciting an order “to review the medical examination so as to render it compliant with the principles set forth at article 18.1 of the Charter, in particular that the pre-hiring medical examination should solely be offered after a job offer conditional upon such examination” is ill-founded and cannot be granted. (Our bold)
Finally, although this question was not central to the issue before the court, since the parties have admitted that questions asked and the information gathered by the clinic within the framework of the pre-hiring medical examination were too far-reaching, the Tribunal shall rule on the responsibility of Bathium in this regard.
Bathium claimed to have granted a specific mandate to the clinic to which it sent its candidates for a medical examination, reserving for itself solely a limited role gathering information. The Court ruled that the absence of any intent to discriminate on the part of Bathium was not a valid defence. It noted that “Bathium remains liable for the acts of Clinique Médicale Racicot in the performance of its services”.
Consequently, since committing a discriminatory act even through the clinic (i.e. that of gathering information in relation to the condition of health of the complainant, which was not necessary to assess the aptitudes and qualities required of the complainant for the job position), is sufficient to give rise to moral damages, the Tribunal awarded the complainant two thousand dollars ($2,000) under this head. No punitive damages were awarded as the Tribunal was of the view that Bathium did not have the intent to cause damages triggered by its negligent conduct.
III – Comment
In Quebec, no decision had hitherto been rendered on the legality or illegality, in light of sections 18.1 and 20 of the Charter, of ordering a pre-hiring medical examination without having made a conditional job offer to the candidate.
In fact, notwithstanding certain articles of doctrine relied upon by the Commission in support of its position, the Quebec courts had not yet had the opportunity to rule on this question.
This judgment is interesting because firstly, the Tribunal des droits de la personne specifically ruled that it is not because the Charter has to be interpreted in a progressive manner that it can impose additional obligations upon the employer not provided for by law.
Furthermore, it recalled that the questions raised and the information gathered by an employer or a clinic carrying out a mandate on behalf of the employer should be limited to what is necessary to assess whether or not the candidate has the aptitudes and qualities required for the job. Thus, an employer should not escape liability or be allowed to hide behind the fact that a third party asked questions of the candidate that were too far-reaching: the company remains liable for the acts of the clinic whose services it had retained.
Thus, in this area, an employer should have granted a specific mandate in writing to the clinic that he uses to carry out his pre-hiring medical examinations. In this manner, management cannot be criticised for having raised a prohibited question or questions on the medical condition of a candidate that are so far-reaching as to be discriminatory.
The Court concluded that the pre-hiring medical examination imposed on the complainant without any conditional job offer does not contravene the Charter. The employer was, however, ordered to pay moral damages to the complainant on the ground that the medical examination was too far-reaching.