The “important” decision reaffirms the wide reach of article 18.1 of the Quebec Charter of human rights and freedoms, which circumscribes information-gathering at the pre-hiring stage, highlights the importance for employers to have thorough pre-employment medical questionnaires that do not breach the Charter, and underscores the need for employers to take immediate action when employees demonstrate bad faith, according to employment and human rights lawyers.
“The decision underlines the importance of employers to improve their pre-employment medical questionnaires to ensure that pertinent questions are asked in order to discover functional work limitations,” said Serge Bouchard, an employment lawyer with Morency Société d’Avocats.
The case dates back to March 2011 when Michelle Paquette was hired as a patient care attendant by Résidence Ste-Anne in Quebec City. Paquette has multiple sclerosis (MS), an incurable and unpredictable degenerative disease that affects a person’s central nervous system, and she suffers from periodic attacks once or twice a year that lead to fatigue and numbness of the hands or feet. At the time of the job interview, Paquette, an experienced patient care attendant, did not have medical restrictions imposed on her by her doctor and therefore she did not reveal that she suffered from MS.
But two weeks after being hired, Paquette suffered an MS attack and was told by her neurologist that she should take off three weeks off. She did not. Instead she took a couple of days off, and asked her employer to relieve of her duty to serve soups or hot drinks to residents because her left hand was numb. Her employer in return asked for a medical certificate that confirmed that she could accomplish the duties she was hired to do. In the meantime, Paquette went to see her neurologist again, who gave her a medical certificate and reiterated that she should take a three-week sick leave. When Paquette went to pick up her pay cheque on April 7, less than a month after she was hired, she was fired.
In the dismissal letter, the employer stated she was fired because of her frequent absences due “to her health condition.” But before the Tribunal, the employer said that the hastily drafted dismissal letter did not “reflect the true reasons” behind the dismissal. Alexandre Caron, the employer, testified Paquette was fired because she did not divulge at the time she was hired that she had MS, which “irremediably led to a breach of trust that is necessary in an employer-employee relationship.” The employer added that healthy employees were an “occupational requirement” for his business and that accommodating Paquette would have caused undue hardship.
“We were above all concerned about the security of the residents,” said Alexandre Lacasse, a Montreal lawyer with Dufresne Hébert Comeau Avocats, who plead the case. “There are two patient care attendants, one on each floor, and if something happens they are on the front line to take care of them. If residents fall, you need to pick them up with both hands or if they have a cardiac arrest you have to carry out a cardiac massage with two hands so it is essential that employees be able to work with both hands.”
The Quebec Human Rights Tribunal dismissed the employer’s contentions. The dismissal letter constituted sufficient evidence to conclude that Paquette was discriminated against because of her illness, said the Tribunal in an 18-page ruling in Commission des droits de la personne et des droits de la jeunesse (Paquette) c. 9208-8467 Québec inc. (Résidence Sainte-Anne), 2016 QCTDP 20. The onus therefore shifted to the employer to justify its discriminatory conduct – and it failed to prove its case. The tribunal held that since Paquette did not have any medical restrictions, her decision to conceal her illness in the absence of a “precise question” during the job interview was “justified.”
Under the Quebec Charter employers are entitled to ask questions that will help them to assess an applicant’s ability to perform the duties of the job and to make an informed decision. However, article 18.1 of the Charter prohibits employers from seeking information about one’s colour, race, sex, pregnancy, sexual orientation, disability or the use of any means to mitigate the effects of one’s disability, pointed out Louis-Philippe Lampron, a human rights law professor at the Université Laval. On the face of it therefore any questions about the health of an applicant is considered to be discriminatory. But article 18.1 does allow employers to ask applicants questions on their health if a medical condition can prevent the person from fulfilling the responsibilities of the job, added Lampron. “The reason why the Tribunal ruled in favour of the complainant is because the evidence seemed to demonstrate that in spite of her illness, even taking into account the numbness in her hand, she was able to perform the most important, or nearly, all of the responsibilities for which she was hired,” said Lampron.
The Tribunal appears to be adding an additional burden on employers to ask precise questions during a job interview, noted Montreal labour and employment lawyer Zeïneb Mellouli of Lavery, de Billy. While it’s true that that on the day of the interview Paquette did not have an MS attack, “nuances” should have been made given that MS is a degenerative illness where functional limitations may be temporary and variable, added Mellouli. “While it’s true that an employer should not be seeking to hire employees in perfect health, it remains that they have a right to know if there are restrictions, in the face of a degenerative disease, so long as there is a rational connection to the duties they must fulfil,” said Mellouili.
Bouchard takes it a step further. He believes that there is a case to be made that since Paquette suffered recurrent attacks once or twice a year that she indeed had medical restrictions that impeded her from fulfilling her responsibilities, and therefore she should have told her employer during the job interview that she was afflicted with MS.
The Tribunal also dismissed the employer’s arguments that Paquette did not act in good faith by failing to disclose her illness during the job interview. If the employer had felt that Paquette gave false or incomplete answers during the job interview and that it lead to a breach of trust in the employer-employee relationship, he should have dismissed her immediately, said the Tribunal. But by allowing her to continue to work, the employer ratified the contract, even if he demanded that she provide a medical certificate proving that she was capable of fulfilling her responsibilities as a patient care attendant, added the Tribunal.
The lesson is clear, said Bouchard. “Employers have to act immediately and not rest on their laurels if they are certain they were deceived,” said Bouchard. “They must terminate the employment contract.” But Lampron believes the matter is far from being clear-cut. If the deceitful reply was in response to a question that may be deemed to be discriminatory under the Quebec Charter, then an employer may have no grounds to fire an employee, said Lampron.
According to Maurice Drapeau, a lawyer with the Quebec human rights commission, the Paquette case is important because it is one of the rare cases that dealt with a dismissal based on a disability. Most complaints the Quebec human rights commission deals with are cases dealing with discrimination at the pre-employment phase of recruiting, said Drapeau. “People may have health problems but that does not mean they are unable to fulfil their job responsibilities,” said Drapeau. “The problem we come across very frequently is that employers are looking for employees in perfect health, in part because of insurance costs. So this is a very important ruling for people with disabilities.”
This story was originally published in The Lawyers Weekly.