Pre-employment procedures: Is there a limit to the information employers can collect about applicants?

On this Human Rights Day 2024, we are republishing this article, written for this same day back in 2023, as a reminder that while employers have some discretion in assessing applicants, as well as a range of tools, they must exercise their rights without discriminatory bias. 

Section 18.1 of the Charter of Human Rights and Freedoms[1] (hereinafter the “Charter”) prohibits, among other things, an employer, “in an employment application form or employment interview, [to] require a person to give information regarding any ground mentioned in section 10”.[2] Note that the interview includes questions asked informally before, during or after the interview.

An employer who questions an applicant on any of the grounds prohibited by the Charter, such as race, sex, civil status, religion or potential handicap, may be violating the applicant’s fundamental rights. Indeed, any question relating to one of the grounds prohibited by the Charter may be considered discriminatory, whether it is simply to learn more about the person or to lighten the mood during the interview.

There is, however, one exception: in Quebec, under section 20 of the Charter[3], the exclusion of an applicant based on the aptitudes or qualifications required for an employment will be deemed justified. However, as we shall see, there is sometimes a fine line between a discriminatory question and one that is justified on employment grounds.

Pregnancy and Number of Children

“Are you pregnant?”, “Do you intend to have children?”: these are two questions that should be avoided in the hiring process, as they are considered, a priori, discriminatory.[4]

In 2019, the Human Rights Tribunal (hereinafter the “HRT”) concluded that an employer who inquires about the number of children an applicant has violates section 18.1 of the Charter, even if the applicant initiated the discussion. The judge pointed out that this information is completely irrelevant and therefore cannot be taken into consideration.

Health

The spectrum is broad: a “handicap”, as defined in section 10 of the Charter^[5], includes most health issues, as well as a wide range of diagnoses such as ADD or ADHD, anxiety disorders^[6], Gilles de la Tourette syndrome^[7], depression^[8], visual or hearing impairments, or drug or alcohol dependence.

Some employers may mistakenly believe that certain occupations are inherently immune from such discrimination (e.g., police officers, firefighters or transport drivers). However, a number of recent decisions have shown otherwise.

The HRT explained in a 2023 decision that section 18.1 of the Charter requires that the pre-employment questionnaire be individualized according to the position, which excludes questions that are too broad, irrelevant or residual.^[10] Thus, questions such as “Have you ever had an operation?”, “Have you ever been hospitalized?” or “Any other health problem not listed above? If so, give details.” are discriminatory when asked in a questionnaire to fill a firefighter position.

The HRT also notes that section 18.1 of the Charter requires that the questions be necessary to assess the aptitudes and qualifications required for the employment. The question “Are you currently taking medication? If so, give details.” was therefore found to be unnecessary and discriminatory within the meaning of section 18.1, as it was not limited to medications that may alter vigilance.

Gender Identity and Expression

In a June 10, 2024 decision, the HRT examines the situation of a person who identifies as transgender and was refused employment after disclosing their gender identity to the employer during training.

The HRT decided that protection against discrimination based on “gender identity or expression” includes trans identity. At the end of the hearing, the HRT concluded that the employer had engaged in a discriminatory practice by refusing employment to this person solely because they identified as a trans person.

Our Labour and Employment Law team frequently assists and advises employers in their recruitment and pre-employment processes.

Do not hesitate to contact us if you have any questions about recruitment best practices.

*** This article was written in collaboration with Rosalie Bergeron, articling student for 2023 at TCJ. ***

[1] CQLR, c. C-12.

[2] Id., sec. 18.1.

[3] Id., sec. 20.

[4] Taken from Recruter sans discriminer : Guide de l’employeur, Commission des droits de la personne et des droits de la jeunesse, <https://www.cdpdj.qc.ca/storage/app/media/publications/Recruter-sans-discriminer_Guide.pdf>.

[5] Khoury c. Institut Trebas Québec inc., 2018 QCCQ 461, para. 24.

[6] Conseillers en ressources humaines et en relations industrielles agréés (Ordre professionnel des) c. Hébert, 2021 QCCDCRHRI 6, para. 20; N.R. c. Société de transport de Montréal, 2018 QCCQ 1419, para. 63.

[7] 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.

[8] Commission des droits de la personne et des droits de la jeunesse (M.R.) c. Société de transport de Montréal (STM), 2021 QCTDP 35.

[9] Commission des droits de la personne et des droits de la jeunesse (Samson-Thibault) v. Ville de Québec, 2023 QCTDP 2.

[10] Id., para. 305-313.

[11] Id., para. 308-313.

[12] Id., para. 347-353