Mental Illness and Employment Discrimination
Discrimination isn’t supposed to happen — except it does
Employers aren’t supposed to discriminate against people with mental illness. In fact, it’s often against the law. Yet it happens, so what do we do about it when it does?
In Canada, provincial human rights legislation requires equal rights and opportunities for people with disabilities and other disadvantaged groups. People with mental and physical disabilities deserve the same treatment.
According to the Ontario Human Rights Commission, the entirety of the employment relationship is covered, including “job applications, recruitment, training, transfers, promotions, apprenticeship terms, dismissal, layoffs… situations where an employee returns to work after a disability-related absence… rates of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations.”
Additionally, “discrimination does not have to be intentional. And, a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place.” Discrimination can involve the withholding of benefits or placing undue burden on the disabled person.
The practice of not hiring people who have gaps in their resume due to disability can be considered discrimination. Creation of a “poisoned environment” against a disabled person at work is also considered discrimination.
Employers have a duty to accommodate up to the point of “undue hardship.” My understanding is that the bar is set quite high for an employer to be able to claim undue hardship. Employers can’t impose negative consequences on employees who seek to assert their rights as disabled people.
In the U.S., Americans with Disability Act (ADA) is very similar to Canadian legislation, covering all elements of the employment relationship and requiring accommodation to the point of undue hardship. If an employer thinks an employee is disabled and discriminates on that basis even if the employee is not in fact is disabled, that is still treated as discrimination under the ADA.
That’s some pretty substantial legal protection we’ve got. Based on this information I could have been a full-time customer at my local human rights tribunal and they would have laid the smackdown on my awful employers.
And yet…
While discrimination against people with physical disabilities is probably more overt in many cases, discrimination against invisible illness becomes much harder to prove, even if in theory the bar is set fairly low for proving this.
Even if job applications and recruitment are covered under disabilities legislation, the chances seem slim to nil that a potential employer would offer any sort of accommodation around the application/interview process to an applicant with an invisible illness. Instead, they would probably just pretend you didn’t exist, and come up with an excuse not to give you an interval at all.
I suspect most of us who have chosen to disclose our mental illness in the workplace have experienced some sort of negative repercussions. Sometimes these repercussions are overt, but often they’re more subtle, and gamey employers know how to spin it to minimize the chances of them being held accountable.
Accommodations are less obvious when it comes to mental illness compared to physical illness. How does one go about an accommodation so that your manager will stop verbally attacking you? The one time I ever did request an accommodation was because of repeated verbal attacks by my supervisor and director. I had found out that accommodation requests were supposed to be sent to the third party disability management service. Except that didn’t happen. My supervisor wanted to meet with me to discuss it. Given that it was meetings with her that were the problem, for me that was unacceptable. That was treated as the end of my accommodation request.
I haven’t experienced being fired because of my illness, but I’ve heard from others who have. So, that happens, you have no income, and the associated stress has kicked your illness into an overdrive. What do you do them?
In British Columbia, the Canadian province where I live, the Human Rights Tribunal has a multi-step process for filing a complain, which must be done within a year of the discrimination occurring. It’s not required to have legal representation, but that would be a lot to take on without a lawyer. A lawyer costs money. And then there’s no guarantee that you’ll be any more able to regain an income at the end of the process.
While it’s great that in theory there’s some strong legislation in place, I’m not convinced that on its own it’s enough to protect people with disabilities. Whether it’s changes to human rights tribunal processes or availability of publicly funded disability rights advocates, we need more than being left on our own trying to figure out what the heck is going on. And wouldn’t it just be great if employers behaved themselves and this wasn’t even an issue.
Originally published at https://mentalhealthathome.org on August 12, 2019.
