Men­tal health mine­field for job seek­ers

The Dominion Post - - National News | Politics - Henry Cooke [email protected]

Emily felt like she had a pretty good shot at the job. It was at New World, af­ter all. Part-time. She had ex­pe­ri­ence work­ing in a mu­seum and had been al­most im­me­di­ately called in for an in­ter­view. Then, as she was fill­ing out a form as part of the in­ter­view, a ques­tion asked if she had any ACC claims. She did – a sen­si­tive claim for post­trau­matic stress dis­or­der (PTSD) that al­lowed her to get coun­selling.

Emily (not her real name) asked her in­ter­viewer, up until then quite friendly, if she needed to list a sen­si­tive claim.

Her in­ter­viewer asked if she had ‘‘a con­di­tion’’ and Emily said yes.

The in­ter­viewer in­sisted that she ‘‘list any med­i­cal con­di­tions’’ – and out­right asked if these con­di­tions had ‘‘in­ter­fered with her study’’.

A few days later she had a re­ceived a curt call to say she had not got the job.

Emily be­lieves com­pletely that this is be­cause she de­scribed her PTSD.

‘‘When peo­ple see ‘‘PTSD’’ they think: Amer­i­can crazy peo­ple back from war who shoot peo­ple – they go right to the ex­treme,’’ Emily said. ‘‘I’ve had pretty sim­i­lar ex­pe­ri­ences in all walks of life.’’

If Emily was in­deed not given the job thanks to her di­ag­no­sis, that would likely be classed as il­le­gal dis­crim­i­na­tion un­der the hu­man rights law, which doesn’t al­low em­ploy­ers to dis­crim­i­nate on the ba­sis of ‘‘im­pair­ment’’ un­less that im­pair­ment could cause harm to the em­ployee or oth­ers, or would stop them from be­ing able to do their job.

And Emily is not alone.

Work­places across all sec­tors of New Zealand so­ci­ety ask some va­ri­ety of this ques­tion, from flashy con­sul­tan­cies like PriceWater­house­Coop­ers (PwC) to small hos­pices to Coca-Cola Amatil to the Depart­ment of In­ter­nal Af­fairs.

But Food­stuffs, which owns New World, ut­terly dis­putes that the com­pany would use that in­for­ma­tion to dis­crim­i­nate on the ba­sis of men­tal health. A spokes­woman con­ceded that they do ask about health is­sues at the pre-em­ploy­ment stage but only ones ‘‘which may ad­versely im­pact them if they were per­form­ing the ad­ver­tised role’’.

‘‘For ex­am­ple, some­one with a sig­nif­i­cant his­tory of se­ri­ous back in­jury may not be suit­able for a phys­i­cal role in sup­ply chain.

‘‘We con­sider these fac­tors, as we have an obli­ga­tion not to cause harm un­der the act,’’ Food­stuffs’ An­toinette Laird said.

She pointed out that New World clearly em­ploys a wide va­ri­ety of peo­ple with var­i­ous health is­sues and chal­lenges, and the com­pany be­lieve the form Emily was asked to fill out made clear they only wanted to know about any­thing that would ‘‘im­pact their abil­ity to do their job’’ and any med­i­ca­tion ‘‘which has the po­ten­tial to make them drowsy – which could po­ten­tially af­fect the safety of the in­di­vid­ual or those around them’’.

‘‘We do not dis­crim­i­nate on the ba­sis of men­tal or phys­i­cal health is­sues.

‘‘Anx­i­ety, PTSD, and de­pres­sion are not a bar­rier to some­one work­ing in our stores.

‘‘We ask, be­cause know­ing what our peo­ple are deal­ing with po­si­tions us to help them bet­ter – rather than find­ing out when they are in cri­sis.’’ Emily finds this prospect laugh­able. ‘‘That’s a great idea that we want to al­low work­places to be ac­ces­si­ble be­cause you want peo­ple with im­pair­ments to be work­ing but what ac­tu­ally ends up hap­pen­ing is like not em­ploy­ing them be­cause its too hard.’’

Of course, it would be al­most im­pos­si­ble for ei­ther side to prove dis­crim­i­na­tion or lack thereof.

‘‘There are both large and small em­ploy­ers across the en­tire coun­try who are ask­ing in­va­sive and po­ten­tially dis­crim­i­na­tive ques­tions.’’

‘‘Sec­tion 23 of the Hu­man Rights Act makes it il­le­gal for em­ploy­ers to ask ques­tions or use ap­pli­ca­tion forms with an in­ten­tion to dis­crim­i­nate based on a dis­abil­ity or any other form of dis­crim­i­na­tion.’’

Janet An­der­son-Bi­dois, chief le­gal ad­viser for the Hu­man Rights Com­mis­sion

‘Grey area’

Chlo¨ e Swar­brick, the Green men­tal health spokes­woman who has col­lected many sto­ries like Emily’s from across the coun­try, said the prac­tice of ask­ing about health con­di­tions or med­i­ca­tions is ubiq­ui­tous.

Swar­brick had not re­ally re­alised the scale of the prob­lem until she toured the coun­try on her own mini men­tal health in­quiry, talk­ing to hun­dreds of young peo­ple in a se­ries of meetings on univer­sity cam­puses. (In Dunedin, Swar­brick clearly pulled in more youth than the of­fi­cial Gov­ern­ment-spon­sored men­tal health in­quiry man­aged.)

‘‘There are both large and small em­ploy­ers across the en­tire coun­try who are ask­ing in­va­sive and po­ten­tially dis­crim­i­na­tive ques­tions, and that only serves to re­in­force neg­a­tive stig­ma­ti­sa­tion around men­tal ill health,’’ Swar­brick said.

She ac­knowl­edged a wide ‘‘grey area’’ in the cur­rent law for em­ploy­ers to ask about med­i­ca­tions and health in or­der to know what to do if some­thing goes wrong – if you col­lapse at work em­ploy­ers want to know if they need to stab you with an EpiPen – but said this could eas­ily be used as a bit of a tro­jan horse for em­ploy­ers.

‘‘I think that it’s im­por­tant for em­ploy­ers to re­ally re­flect on how true that as­ser­tion is, be­cause there is no clar­i­fi­ca­tion in a num­ber of ques­tions that we’ve seen and been pro­vided with that you know there’s no clar­i­fi­ca­tion that it is for these ex­treme cir­cum­stances.

‘‘It is of­ten sim­ply: give us a shop­ping list of the med­i­ca­tion that you are on,’’ Swar­brick said.

There is also a wide grey area of what ex­actly con­sti­tutes an ill­ness that will in­ter­fere with you do­ing your job: an anx­i­ety dis­or­der might in­ter­fere with your high-stress of­fice job but isn’t the high stress re­ally the prob­lem there?

‘‘In sit­u­a­tions like where you are op­er­at­ing heavy ma­chin­ery [health con­di­tions are] to a cer­tain ex­tent a prac­ti­cal con­sid­er­a­tion.

‘‘But where there aren’t con­di­tions that would im­pair some­one’s job or abil­ity to do their job and they are be­ing asked to pro­vide that in­for­ma­tion, it does open the door to that dis­crim­i­na­tion prej­u­dice,’’ Swar­brick said.

Work­place safety

Em­ploy­ment law and work­place safety law can of­ten col­lide.

The place that these messy grey ar­eas usu­ally get sorted out is the Em­ploy­ment Re­la­tions Au­thor­ity.

In 2012, the au­thor­ity ruled that a man could be fired for not dis­clos­ing his bipo­lar di­ag­no­sis when ap­ply­ing for a job as a se­cu­rity guard – but, cru­cially, it hung on the fact that he would be work­ing around dan­ger­ous chem­i­cals.

‘‘The com­pany might not have had grounds to dis­miss the man in a less dan­ger­ous role, like an of­fice job, but he was in sole charge in a dan­ger­ous role,’’ the ad­ju­di­ca­tor wrote – clearly set­ting up some bound­aries for how far this de­fence can be taken.

Other em­ploy­ers also say they are only try­ing to keep their employees safe.

PwC, the type of com­pany em­ploy­ers usu­ally go to for ad­vice on these kind of thorny is­sues, told Stuff that they ask a ‘‘range of ques­tions in our ap­pli­ca­tion process in­clud­ing a small num­ber re­lat­ing to the ap­pli­cant’s health’’.

One per­son who spoke to the Greens be­lieved that her anx­i­ety di­ag­no­sis had seen her au­to­mat­i­cally kicked out of the run­ning for a PwC job. But the com­pany dis­putes this.

‘‘We are con­fi­dent these ques­tions align with the Hu­man Rights Amend­ment Act and the health and safety at work leg­is­la­tion and are rel­e­vant to the role be­ing per­formed,’’ a spokes­woman for PwC said.

‘‘They are asked in or­der to ensure we can pro­vide the nec­es­sary sup­port to can­di­dates, and make ac­com­mo­da­tions should they start work­ing with us.

‘‘PwC has a merit based re­cruit­ment and se­lec­tion process and we are proud of our di­verse and in­clu­sive team.

‘‘We do not make hir­ing de­ci­sions based on some­one’s men­tal or phys­i­cal health.’’

Pub­lic ser­vice

The highly-unionised pub­lic sec­tor, usu­ally thought of as a place with ul­tra-com­pli­ance to em­ploy­ment law, does not ap­pear to be im­mune from ask­ing these kinds of ques­tions.

There is some open and pub­li­cised dis­crim­i­na­tion that some Kiwis may find them­selves agree­ing with – po­lice of­fi­cers until a short time ago needed to be off anti-de­pres­sants for two years be­fore be­ing al­lowed to work.

But it isn’t lim­ited to roles where peo­ple get to carry a gun.

Adam, a ca­reer pub­lic ser­vant, told Stuff he had seen it hap­pen across mul­ti­ple agencies – most re­cently the Depart­ment of In­ter­nal Af­fairs (DIA).

Adam (not his real name) has ‘‘se­vere de­pres­sion’’ but doesn’t be­lieve this has much of a bear­ing on his abil­ity to do his of­fice-based job.

Yet he says that ever since he dis­closed this to a man­ager in an­other gov­ern­ment depart­ment, the di­ag­no­sis has fol­lowed him around the tight-knit world of Welling­ton.

‘‘It’s not sup­posed to be some­thing that’s held against you.

‘‘But it’s a bit like try­ing to deal with look­ing for jobs as an older em­ployee in New Zealand these days – you just don’t get called back.’’

Adam said al­most all Gov­ern­ment ap­pli­ca­tion forms had a ques­tion about employees’ health and sev­eral places asked what med­i­ca­tion employees were on.

‘‘That is abused and used against you at the drop of the hat.

‘‘It’s funny how the in­for­ma­tion leaks to man­agers from HR [across var­i­ous Gov­ern­ment de­part­ments] but try­ing to prove that’s what hap­pened is im­pos­si­ble,’’ Adam said.

‘‘They have got­ten more in­tru­sive and more de­mand­ing as the last decade has gone past.

‘‘You are left in the po­si­tion of ei­ther ly­ing or paint­ing a tar­get on your­self.’’

He said that while ap­ply­ing for a job at DIA re­cently he had been asked to dis­close what med­i­ca­tion he was on.

He told them about the SSRI anti-de­pres­sants he took, and did not get the job.

Again – there is no sim­ple way to prove that this was the rea­son.

A spokes­woman for DIA said they were clear in their ap­pli­ca­tion process that their health-re­lated ques­tions only re­lated to is­sues that might af­fect some­one’s abil­ity to ful­fil the job – and pro­vided a sam­ple form to prove it.

‘‘While we are un­able to com­ment on the spe­cific in­stance you de­scribe, we would be sur­prised and dis­ap­pointed if a hir­ing man­ager asked spe­cific ques­tions about med­i­ca­tion(s) dur­ing the re­cruit­ment process.

‘‘The purpose of ask­ing these ques­tions is to un­der­stand the con­di­tion(s) a per­son might have so that we can pro­vide ap­pro­pri­ate sup­port to en­able them to per­form the work of the job they are ap­ply­ing for,’’ the spokes­woman said.

‘‘We are proud that 17.85 per cent of our peo­ple have self-iden­ti­fied as hav­ing a dis­abil­ity, in­clud­ing men­tal health con­cerns.

‘‘Fur­ther, we are con­fi­dent that our re­cruit­ment prac­tices com­ply with the Hu­man Rights Amend­ment Act 2001.’’

Hu­man rights

There is clearly a lot of grey here. One way out of it for em­ploy­ers look­ing for peo­ple to work safe jobs is to sim­ply not ask the ques­tion – which might breach an em­ployee’s pri­vacy any­way,

Janet An­der­son-Bi­dois, chief le­gal ad­viser for the Hu­man Rights Com­mis­sion, said: ‘‘Gen­er­ally, an em­ployer should not ask a po­ten­tial em­ployee to dis­close med­i­cal or ACC his­tory dur­ing the job ap­pli­ca­tion process or at an in­ter­view.

‘‘Sec­tion 23 of the Hu­man Rights Act makes it il­le­gal for em­ploy­ers to ask ques­tions or use ap­pli­ca­tion forms with an in­ten­tion to dis­crim­i­nate based on a dis­abil­ity or any other form of dis­crim­i­na­tion,’’ An­der­son-Bi­dois said.

‘‘It is against the law to dis­crim­i­nate against peo­ple based on a dis­abil­ity and ex­pe­ri­enc­ing a psy­chi­atric ill­ness or psy­cho­log­i­cal im­pair­ment fall within the def­i­ni­tion of a dis­abil­ity for these pur­poses.

‘‘Dur­ing a job in­ter­view, an em­ployer should be es­tab­lish­ing whether a po­ten­tial ap­pli­cant is able to do the job. The job ap­pli­cant should be told what the job’s re­quire­ments are and then asked about any med­i­cal or phys­i­cal con­di­tions or dis­abil­i­ties that might pre­vent them from car­ry­ing out the work sat­is­fac­to­rily. In­for­ma­tion that is not rel­e­vant should not be re­quested.’’

Swar­brick said there was no ob­vi­ous blue­print for best prac­tice in this area but right now there was ‘‘too much grey’’.

She has not ruled out some kind of pol­icy change pro­posal to fix up the is­sue af­ter the next elec­tion but wanted to have a na­tional con­ver­sa­tion about the is­sue first – de­spite the fact it is barely men­tioned in the mam­moth men­tal health in­quiry re­port.

‘‘We have to be open about the fact that there is cur­rently stig­ma­ti­sa­tion and prej­u­dice that is oc­cur­ring. I think that re­spon­si­ble em­ploy­ers are hope­fully go­ing to be invit­ing the op­por­tu­nity to work with Gov­ern­ment or within the pri­vate sec­tor to de­velop a sound frame­work for how they sup­port peo­ple with men­tal ill health and don’t ac­tu­ally cause it in their employees.’’

Emily would love for this to hap­pen too.

But for now she just wishes peo­ple would un­der­stand her PTSD di­ag­no­sis ac­tu­ally helps her deal with the world, rather than hin­der­ing her.

‘‘It’s a di­ag­no­sis so that you can learn how to deal with things, how to live with them.

‘‘I wish that were more widely un­der­stood.’’

Green MP Chlo¨ e Swar­brick

In­for­ma­tion that is not rel­e­vant should not be re­quested on job ap­pli­ca­tion forms or at job in­ter­views.

Chlo¨ e Swar­brick, Green MP and men­tal health spokes­woman, has toured the coun­try on her own mini men­tal health in­quiry.

Janet An­der­son-Bi­dois: the chief le­gal ad­viser at the Hu­man Rights Com­mis­sion is clear on which ques­tions are per­mis­si­ble in a job in­ter­view.

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