The Canadian Charter of Rights and Freedoms
When we talk about pre-employment testing, such as FCE tests or Functional Capacity Evaluations, we need to talk about The Canadian Charter of Rights and Freedoms (the Charter), it is a constitutional document. It is described as the “supreme law” in Canada because it can be used in the courts to challenge or strike down unconstitutional laws or government practices. The Charter guarantees equal rights and treatment based on a number of grounds, including race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. The implementation of the Charter is done at a provincial level via the Human Rights Code (the Code)
Right to equal treatment without discrimination
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
What is discrimination?
- not individually assessing the unique merits, capacities and circumstances of a person
- instead, making stereotypical assumptions based on a person’s presumed traits
- having the impact of excluding persons, denying benefits or imposing burdens.
It is NOT LEGAL to use medical assessments to screen out applicants
In the past, employers often screened out applicants with disabilities based on medical information on application forms, or from pre-employment medical exams. The Commission takes the position that requiring such information as part of the application screening process violates subsection 23(2) of the Code.
It is LEGAL to use medical assessments after a conditional offer of employment.
Medical assessments to verify or determine a person’s ability to perform essential job duties should only take place after a conditional offer of employment is made, preferably in writing. This allows an applicant with a disability the right to be considered exclusively on her or his merits during the selection process.
It is LEGAL to use a Post-Offer Employment Testings (POET)
A POET compares the job candidate’s ability to the essential job duties. It takes place only after a job offer is made - the hiring is conditional on the candidate demonstrating the ability to safely perform the essential job duties. A POET consists of a series of functional tests with pass/fail or fit/not fit standard based on essential job duties.
Example: The candidate has received a conditional offer conditional upon passing the POET test. In the POET they must demonstrate that they can perform a) frequent overhead work. b) occasional low level work c) occasional lifting of 25 lbs from floor to waist.
Using a Physical Demands Analysis (PDA) to determine the fit/not fit standard
A PDA is a systematic procedure to quantify and evaluate all of the physical demand components of all essential and non-essential tasks of a job. The objective measurements recorded in a PDA become the fit/not fit standard for the POET.
Example: The PDA assessor weighs a car part, and measures the distance, and how many times per hour it must be lifted. The identified job duty, then becomes the POET standard: Occasional floor to waist lifting of 25 lbs.
In summation, properly structured Pre-Employment testing is legal
According to the OHRC, Pre-screening is relevant information to obtain about employees during the hire process. It is significant to ensure that employees are able to perform essential duties of the job. An example of a way employers can ensure that employees can meet the job demands, is through a physical demands analysis. It may not be required for non-essential tasks but all jobs have their own physicalities involved, whether it is sitting at a desk to something very physically active, like lifting heavy packages.
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