Employers have always sought to implement a selection process for hiring the best candidates for their organizations. This crucial step allows employers to ensure the reliability and physical and mental capabilities of potential employees, who will hopefully provide them with diligent and reliable services, one of the rare obligations incumbent on workers in labour relations matters.
In connection with the selection process, employers will thus want to ensure that this special someone will be able to perform all of his or her duties in a prudent and safe manner, thereby helping the employer meet its obligations to protect the health, safety and security of its workers.
In order to do this, and to satisfy themselves concerning the true capabilities of their future employees, employers have a recognized right, when hiring employees, to verify that they have the normal professional aptitudes required by their positions and the duties inherent therein.
In light of the foregoing, there is no question that an employer has a legitimate right to require that the candidates it has selected for a particular position participate in a selection process which may justify a physical or psychological examination in accordance with certain criteria.
The nature of the operations involved in the employer’s business and the duties for which the employer is planning to hire a candidate (its management right) are most definitely criteria according to which the employer may also justify the need to utilize medical tests or questionnaires.
As is the case for all required steps in connection with relations with their active employees, employers have to deal with certain limits on their rights when selecting future employees. Such limits involve privacy rights, how employers must collect, use and retain personal information, and the exercise of discrimination, justified or not, when choosing candidates.
In Quebec, organizations whose activities are governed by federal law are subject in particular to the obligations provided for in the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms and the Privacy Act.
Organizations under provincial jurisdiction are subject to similar provisions set out in particular in the Charter of Human Rights and Freedoms, the Civil Code of Québec, the Act respecting the protection of Personal Information in the Private Sector and the Act respecting Industrial Accidents and Occupational Diseases.
The recognized principles
In the course of the recruitment process, employers have a tendency to collect a great deal of information, which can be of “variable relevance”. For while some information may be indispensable in deciding whether or not to hire a candidate, the same cannot be said of other kinds of information.
Generally speaking, the courts authorize employers to collect, use and retain only information that is necessary to allow them to confirm that a candidate is capable of performing the specific duties involved in the position he or she is applying for.
The job application form is definitely the tool most relied upon by employers in the recruitment process. Straightforward and easy to use, it can nevertheless give rise to an invasion of privacy or be the basis for discrimination. In order to avoid them being used as ready evidence of an unjustified invasion of a candidate’s privacy, such application forms should be prepared in light of the requirements for each specific position to be filled within the organization. By the same token, customizing job application forms is particularly relevant when questions concerning the physical or psychological limitations of a candidate are justified because of the specific requirements of a task or position.
While the objective customizing of a job application form can in most cases be a relatively simple exercise, the same cannot be said about job interviews, which because of their dynamics may prove difficult to control when the time comes to inform the candidate of certain aspects of the employment position being sought. In such situations, a standardized interview form can be useful in ensuring that employers respect the limits of their right to inquire into candidates’ personal lives.
When an employer requires a candidate to disclose medical information, it is definitely invading the candidate’s privacy. Before imposing such a requirement, the employer must determine whether the line of inquiry is necessary and justified by the specifics of the position in question.
Apart from the fact that a medical questionnaire or examination is an invasion of a candidate’s privacy, the decision not to hire a candidate for medical reasons can definitely be characterized as discriminatory. If challenged, the employer will have to show, based on convincing evidence, that:
- The medical questionnaire or examination is directly and essentially related to determining the candidate’s ability to perform the duties inherent in the position;
- The standard pursuant to which the decision was made was adopted for a rational purpose related to the performance of the work, on the basis of the actual requirements of the position applied for;
- The standard was adopted in the sincere conviction that it was necessary;
- It is impossible to accommodate employees with the same limitations as the candidate without experiencing undue hardship.
In addition to the limits canvassed above, it should be noted that several decision-making authorities have already expressed reservations regarding the validity of tests of a psychological nature. Moreover, since psychometric tests are, generally speaking, inherently personal and invasive, in order to justify them the employer must demonstrate, in addition to their reliability, that they are necessary in order to determine the existence of personality traits that are required because of the specific demands of the position.
In another vein, when an employer wishes to include a drug or alcohol detection test as a hiring condition, it must be able to objectively demonstrate the need for doing so, as this too is an invasion of candidates’ privacy. In this regard the case law is clear that the employer cannot simply argue that employees who do not consume drugs or alcohol are more efficient, diligent and better performing. This is all the more true since, beyond the purely subjective aspect of such an assertion, the reliability of such detection tests is frequently one of the foremost factors taken into consideration by the courts in rejecting them. To the extent that, for safety and security concerns or in order to assess whether the candidate has the required aptitudes for the position, an employer still wishes to administer such tests, it is essential that it first make a very detailed and specific analysis of the positions and candidates involved in order to demonstrate that they are justified.
Selection by a sub-contractor
Employers who require candidates to undergo a medical examination frequently, if not generally, retain the services of a firm specialized in this area. While legitimate, the implementation of a selection process in concert with one or more specialized firms raises important issues involving privacy rights and the confidentiality of the personal information so obtained, and the potentially discriminatory decisions that may ensue. There is also the sensitive issue of the liability of those persons taking part in such a process.
In theory, one is not liable for the acts of a co-contractor that harm a third party. However, that is not necessarily the case in labour-relations matters, particularly where the implementation of a hiring process is concerned. Despite having retained the services of an independent contractor to assist it, the employer will be solely responsible for the decision whether or not to hire a candidate, and for the consequences of that decision. The employer must ensure that the contractor, as the employer itself is bound to do, limits itself to making only those inquiries and observations that are related to the candidate’s ability to perform the duties of the position sought.
Throughout the selection process, the employer must not only obtain the candidate’s express consent to the gathering of information about him or her by the employer, but to the use of that personal information as well. Such consent must of course be free and informed, but in order to be valid it must also be obtained for specific purposes directly related to the decision whether or not to hire the candidate.
Since an employer cannot refuse to hire a candidate for specific medical reasons, except where any associated limitations preclude the candidate from performing the duties of the position applied for, in what circumstances is the employer bound to take measures to accommodate a candidate’s limitations?
Where discrimination is concerned, the courts recognize that the employer’s obligations, whether at the hiring stage or when the individual concerned is already in its employ, are the same. Thus, when an employer decides to have a candidate undergo a medical examination, it must assume the consequences of that exercise, which may compel it to put in place accommodation measures.
Even if a candidate succeeds in demonstrating that he or she was discriminated against at the hiring stage, the employer may counter by maintaining that its impugned decision or practice was a justifiable business necessity, as it could not have implemented accommodation measures without incurring undue hardship.
To succeed in this regard, the employer must demonstrate that it made reasonable efforts to adjust the requirements of the position sought or to find an alternative position compatible with the candidate’s limitations, but was unable to do so without incurring undue hardship.
In our view it would not be prudent for an employer to require a candidate to provide it with medical information if the nature of the duties of the position applied for, or the actual risks posed by one or more of the candidate’s medical conditions for the safe performance of those duties, do not justify requiring that information.
If the candidate succeeds in showing that he or she was discriminated against on the basis of a handicap, the Court will only order that the candidate be hired if the candidate can establish that he or she would have been hired but for the handicap.
In order to avoid finding yourself in a situation where you are accused of discrimination, or at the very least in order to reduce the risk of that happening, we recommend that you not require the candidate to fill out a medical questionnaire or undergo a medical examination until the very last stage of the hiring process, but in all events before hiring the candidate.