A prospective police officer who alleged that the Quebec provincial police force withdrew its pre-employment offer because he has Tourette Syndrome was rebuffed by the Quebec Court of Appeal after it found instead that he was not forthright and did not act in good faith during the hiring process.
In a decision in line with prior jurisprudence, the Quebec Appeal Court sheds new guidance that advises employers to exercise caution when drafting questionnaires, particularly medical queries, even in cases when pre-employment offers have been made, according to employment and legal experts. The unanimous per curium ruling acknowledges that it is a difficult balance to achieve between asking overly broad questions that may be deemed to be discriminatory under the Quebec Charter of human rights and freedoms and drafting “too specific” questions that may deprive employers of relevant and necessary information.
“It provides some guidelines to employers,” remarked Finn Makela, a law professor at the Université de Sherbrooke where he teaches labour and employment law. “One, it’s not an open bar. Employers can’t just ask super vague questions. And second, the decision also confirms the jurisprudence that the employer needs to justify in their specific circumstances why questions are related to job functions. So that gives some guidance. But, as the Cour of Appeal says, it’s not always easy.”
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But according to Quebec City labour lawyer Marie-Michelle Savard, the decision also puts potential employees in a tight bind. “It doesn’t matter whether the question is very broad or discriminatory, it is important for the candidate to be transparent and provide information that is asked because there is an obligation of good faith, collaboration, and transparency,” said Savard of Verreau Dufresne Avocats.
The appellant, identified only as T.J.R., was diagnosed at the age of seven with Tourette Syndrome. He has rare vocal tics that are mostly controlled and motor tics such as occasional eye blinking. But he does not have any of the other symptoms commonly associated with the neurological disorder, be it attention deficit, compulsive behaviour, or personality disorders.
After working in the Canadian Army and as a correctional officer, the complainant applied to become a police officer with the Quebec provincial police force, the Sûreté du Québec (SQ). It is a long recruitment process that involves of series of tests, ranging from personality and situational judgment exams to physical and medical tests to a pre-employment questionnaire. If a candidate passes the screening process, he will receive a promise of employment, albeit following an SQ recommendation and the authorization of the Quebec Public Security Ministry. The pre-employment offer itself is conditional upon completing a 15-week internship at the Quebec National Police Academy. But under terms of the promise, the SQ reserves the right to terminate the hiring process if actions taken by the candidate or information brought to their attention establish that the candidate does not meet their hiring criteria.
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In July 2012 T.J.R. received a promise of employment from the SQ. He then left his position as a correctional officer, began his studies, and successfully graduated from the Academy, receiving a distinction from his peers. But in October 2013, during the Academy’s graduation ceremony, an SQ recruitment officer found out through instructors that T.J.R. suffered from Tourette Syndrome, but they added that it did not affect his performance. That prompted an internal inquiry and the SQ discovered that T.J.R. never mentioned he had Tourette Syndrome in the medical questionnaire, during two medical exams, and in the pre-employment form. Nor did T.J.R. aver that he had seen a psychologist on his own volition in connection with his “unhealthy” relationships with women. After a lengthy investigation, the SQ withdrew the promise of employment even though an SQ physician concluded that he was still fit to work as a police patrol officer. The SQ maintained that the bond of trust had been broken and he no longer met the requirements of ethics and good character required to perform the work of a patrol officer.
“The police service did what’s generally recommended for employers to do,” said Makela. “When employers do it by the book, that is, make the offer first and then ask the questions, there’s less danger that there’s going to be discrimination because the employer is already under the obligation to demonstrate that it’s a bona fide occupational requirement.”
Quebec Human Rights Commission
In November 2019, the Quebec Human Rights Commission, acting in the public interest and on behalf of the T.J.R., filed a complaint with the Quebec Human Rights Tribunal. In Commission des droits de la personne et des droits de la jeunesse (T.J.R.) c. Procureur général du Québec (Sûreté du Québec), 2020 QCTDP 20, the Tribunal found that the SQ’s decision to retract the promise to hire him was based on misrepresentations T.J.R. made, and not due to discrimination based on handicap.
The Quebec Human Rights Commission appealed, arguing that the withdrawal of the employment promise was not justified. T.J.R.’s false statements were irrelevant because they dealt with questions the employer was not entitled to ask because they were discriminatory, added the appellant. T.J.R. acknowledged that the employer was entitled to ask him whether he suffered from Tourette’s, but he asserted it can only do so by means of specific questions. He also argued that his mental health issues were irrelevant. Moreover, he contended that the SQ rescinded its employment promise because of his health, adding that because of its generous disability plan, the provincial police force only wants to hire healthy candidates.
Prime facie breach
The Quebec Appeal Court, in upholding the Tribunal’s conclusion, dismissed all of T.J.R.’s contentions. In Commission des droits de la personne et des droits de la jeunesse (T.J.R.) c. Procureur général du Québec (Sûreté du Québec), 2022 QCCA 1577, a decision issued on Nov 22, the Appeal Court found that information sought through a medical questionnaire about a candidate’s state of health falls within one of the grounds of discrimination set out in s. 10 of the Quebec Charter. The fact that a candidate must answer such questions as part of the hiring process is prima facie evidence of the violation, regardless of the use that will be made of the information at a later date.
But, added the Appeal Court, the employer is also entitled as part of the hiring process to ensure that the candidate has the skills and qualities to perform the tasks assigned to him in a manner that is safe for him and others. It is incumbent on the employer to demonstrate on a balance of probabilities that the requested information will be used only for this specific purpose, added the Appeal Court. “The questionnaire must be modulated according to the tasks to be performed and must not aim to hire only healthy candidates with less risk of absenteeism,” said Justices Geneviève Cotnam, Michel Beaupré and Peter Kalichman. The same holds true for pre-employment questionnaires.
One of the contentious questions at issue was whether T.J.R. suffered from a nervous system disorder and if so to provide more details. The question did not stipulate Tourette’s Syndrome. The Appeal Court upheld the Human Rights Tribunal finding that the question was “directly and rationally connected to the skills and characteristics required” to perform the work of a police officer.” The Appeal Court added that it would be unreasonable to require the questionnaire to list every neurological disease or every potentially relevant symptom. “The fact that it is difficult to categorize Tourette Syndrome as a neurological disorder or a mental health problem or that the complainant believes he or she is cured… does not release him from his obligation of transparency and good faith,” held the Appeal Court. “He knows his condition and it is not up to him to determine what is ultimately important or not in the eyes of his potential employer.”
Discriminatory nature of questions does not….
Another litigious question asked T.J.R. to enumerate any health conditions not specifically covered by previous questions – a question deemed by the Tribunal to be too broad and discriminatory. This finding, held the Appeal Court, “arguably warranted” a Charter remedy to compel the police force to change the question and bring it into compliance with the requirements of the Charter. The discriminatory nature of the question did not, however, absolve T.J.R. of his obligation to disclose a medical condition that would be of concern to a future employer, held the Appeal Court. “He could have responded with any nuances he deemed appropriate,” and the subject could then have been addressed during the medical examination and specifically analyzed by the employer’s doctor. He should also have been more forthcoming about seeing a psychologist, added the Appeal Court.
“The Appeal Court made a very interesting distinction in this decision,” said Savard. “What the Appeal Court tried to distinguish is whether we are faced with a situation where the employer was using information to discriminate against the employee, or rather using the information to understand and determine whether the employee had shortcomings regarding transparency, honesty, loyalty, and therefore good character. It’s really an exercise that is not easy to establish.”
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The decision makes it plain that prospective employees during the hiring process have an obligation of transparency and good faith towards his potential future employer, remarked Makela. But it also hinges on the situation and the kind of job a candidate is seeking, added Makela.
“It’s clear that for a job in sales or an office job, it would be a discriminatory question to ask a candidate whether he’s seen a psychologist because there’s no potential justification for the employer to say that it’s relevant to the job function,” explained Makela. “But in the case of a police officer, the nature of the job is that you’re dealing with people in conflict. So it’s relevant to know if you have a certain psychological profile. And so it’s legitimate to ask have you seen a psychologist.
“It’s always going to depend on the nature of job functions, and the burden of proof is always on the employer to show that it’s a justified question, that it’s related to the job functions.”
Counsel for the Quebec Human Rights Commission did not return calls.
This story was originally published in The Lawyer’s Daily.