The facts
During January 2012, an electronics technician with twenty years’ experience filed a job application with the Société des Transports de Montréal (STM) for a position as an electronics component unit repairman.
The physical job requirements included a capacity to recognize colour codes used in the electronics sector and a capacity to exercise dexterity and grip in the handling of electronic circuits. The work also required periodic interventions in zones with high electrical voltage.
The STM argued that it was vital for the safety of users and employees that workers be able to maintain a constant state of vigilance.
After having filed his job application, the complainant underwent a pre-hiring process, including a theoretical exam, interview, medical questionnaire and medical examination.
The questionnaire required that the candidate provide his age, birthdate, social insurance number and health insurance number.
During the hiring process, the candidate also had to complete a medical questionnaire containing a warning further to which “the hiring process can only be completed if the candidate has fully responded to all the questions on the form.”.
This medical questionnaire also contained the following questions:
- Are you currently being treated for angina or infarction (heart attack)?
- Have you ever had a high cholesterol reading?
- Do you suffer from any of the following medical conditions: high blood pressure, asthma, allergies, tuberculosis, diabetes, epilepsy, emotional troubles, dependencies, cancer, arthritis, etc. including or other diseases affecting your system?
Where the complainant responded in the affirmative to any of these questions, it was possible for an interviewer to add certain particulars after having questioned the candidate.
Thus, after having filled out the pre-hiring questionnaire, the complainant was interviewed by an STM nurse, who reviewed his answers jointly with him. During this interview, he was also required to undergo an eye test, hearing test, a drug test, and was administered a jab in the index finger to verify his hypoglycaemia. His blood pressure was also measured several times.
Following this interview, the nurse contacted the complainant to obtain miscellaneous additional medical information concerning his psychological condition, i.e., his medical record, a recent report concerning his functioning, medication and capacity to work. She also put questions concerning his diabetes, although the candidate had lived with this illness for twenty years. She also required a blood pressure reading by a physician and a follow-up care report, considering his high pressure.
At the end of the meeting, the nurse indicated to the complainant that his file would be assessed by the STM in-house physician within twelve months following the complete filing of his job application. Although he provided the employer with all the information required and he declared that he was capable of performing the job duties of the position that he was seeking, the complainant was never informed of any follow-up since his file was “misplaced”. Due to this error, the candidate had to restart the pre-hiring process.
When he discovered a new call for tenders for the position of electronics technician, the complainant resubmitted an application and was again forced to repeat the entire pre-hiring process from the beginning.
Subsequently, the complainant discovered that this new offer had also been filled by another candidate.
The decision
The Tribunal des droits de la personne had to decide whether the STM had violated the right to equality of the candidate by requiring a range of information on his health condition and lifestyle which was irrelevant to an assessment of his aptitudes and qualities required for the position as electronics technician.
At the same time, The Tribunal had to ask whether the STM, when it refused his job application, had violated the right of the candidate to be considered without any discrimination based upon his handicap.
The Tribunal des droits de la personne pointed out that pre-hiring questionnaires and exams with respect to the health of the complainant fall within the grounds for deemed discrimination listed at section 10 of the Charter of Human Rights and Freedoms, i.e. a distinction, exclusion or preference based upon a handicap.
However, in itself, the mere act of collecting such information is not tantamount to a violation of section 10, provided the employer is able to prove that:
1) norms or requirements were adopted for a purpose rationally connected with the performance of the relevant job tasks;
2) norms or requirements were rationally necessary to achieve a legitimate purpose related to the work;
3) it would prove impossible to accommodate the worker without incurring an excessive constraint.
After having analyzed these necessary requirements, the Tribunal reached the conclusion that it was not justifiable that a candidate be questioned in a discriminatory manner about his health problems on the pretext of guaranteeing the safety of the employee and other employees. Thus, according to the Tribunal, sweeping questions of a general order probing any type of functional limitations and questions dealing with personal history, save and except eye exams, questions on diseases of the nervous or muscular system or questions regarding drug or alcohol abuse were discriminatory under Sections 10 and 18.1 of the Charter.
The Tribunal ruled that the requirements of the position should be considered, taking into account the nature of the risks incurred in the performance of the job. In this case, the Tribunal ruled that risks related to job duties of technicians should be distinguished from a position which justifies a higher level of safety for the protection of the public, such as bus drivers, for example.
On the basis of the foregoing principles, the Tribunal ruled that the process of selection undergone by the complainant was tantamount to discrimination and a violation of his integrity, dignity, and the respect of his privacy. The STM was ordered to pay the candidate approximately 42 000$ as compensation for the material loss of salary arising out of the fact that he wasn’t awarded the position, and 10 000$ as moral damages to compensate the prejudice to his dignity, integrity and violation of his privacy.
