Mental health minefield for job seekers
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
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.
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.’’
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.’’
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.