Appeal Court underlines employers do not have a free pass to ask questions to potential employees

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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