Employers aren’t supposed to discriminate against people with mental illness. In fact, it’s often against the law. Yet employment discrimination happens anyway, and it’s a form of structural stigma. So what do we do about it when it does?
Legal protection
Canadian human rights legislation
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 resumes due to disability can be considered employment discrimination. The creation of a “poisoned environment” against a disabled person at work also counts as 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.
Americans with Disabilities Act
In the U.S., the 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 isn’t actually disabled, that’s 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 smack down on my awful employers.
And yet…
The reality of invisible illness
While employment discrimination against people with physical disabilities might be more overt, 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’d probably just pretend you didn’t exist and come up with an excuse not to even give you an interview.
I suspect that many, if not 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. Gamey employers know how to spin it to minimize the chances of them being held accountable.
The trickiness of accommodations
Accommodations are less obvious when it comes to mental illness compared to physical illness. How does one go about getting 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 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.
You can read more in my article Workplace Accommodations for People with Mental Illness on Disability New Wire.
The challenge of fighting back
I’ve never been 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 then?
In British Columbia, the Canadian province where I live, the Human Rights Tribunal has a multi-step process for filing a complaint. This must be done within a year of the discrimination occurring. It’s not necessary 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 have 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 from employment discrimination. Whether it’s changes to human rights tribunal processes or the 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.
My latest book, A Brief History of Stigma, looks at the nature of stigma, the contexts in which it occurs, and how to challenge it most effectively.
You can find it on Amazon and Google Play.
There’s more on stigma on Mental Health @ Home’s Stop the Stigma page.
Hmm, I have had some support in the workplace with depression, but I think a lot depends on your employer. And I have stated that I have a disability in advance and still been called to interview, although only one place (a child development research centre with a big bust of Freud in their library) allowed me to see the interview questions in advance (high functioning autism means my mind sometimes blanks when people fire questions at me), although I can see why people might think that that’s not a reasonable adjustment.
I think with mental illness part of the problem is finding adjustments that are reasonable for both sides. In one job, when my depression and anxiety was so bad I could barely function, I was switched from set hours to working what I could and being paid for however many hours I managed, but the organisation become less comfortable with that set-up as time went on, which I guess is understandable because I was at times barely there. I’m not sure what further legislation would necessarily accomplish.
I think it would go a long way if more employers would realize that things like providing interview questions ahead of time can be a very important accommodation rather than an attempt to get an unfair advantage.
I think this is an excellent article which made me think and review in my own mind about discrimination in my own career.
Thanks!
A very informative and eye opening post. Thanks, Ashley!
Legislation is of little value without enforcement and unfortunately here in the USA at least the ADA’s regulatory body (EEOC) is a toothless dog.
I agree.
It’s against the law to discriminate against mental illness and yet I still fear I will be less likely to be offered a job if I put down the illness’ I suffer from.. It’s hard to tell if you didn’t get the job because of your illness’ or because you just simply weren’t right for the job, so I honestly think so many companies get away with discrimination and it’s hard to actually prove that it is discrimination.. does that make sense? Super informative post and so important to raise awareness of such a topic that affects so many lives. x
I completely agree. Because it’s hard to prove, it’s very easy for them to get away with it.
That’s why I never disclose mine. Businesses put such laws as the ADA as a show, but I believe they will find some reason to blackball a person with disabilities especially if it’s an “invisible” one. I feel businesses put those laws are really to protect themselves from facing lawsuits, rather than to truly accommodate their employees with disabilities.😒😔
I totally agree.
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No! Thank you!!!
Thank you for sharing this. Such an interesting post. We have similar laws in the UK, but again, whilst great in principle, it’s putting them into practice effectively. I have had mixed experiences with telling people about my illnesses, from being bullied, to being sent to occupational health who wrote a report literally saying, and I quote ,’an eating disorder is like being an alcoholic, once an alcoholic always an alcoholic.’ He said my eating disorder meant I was ‘dangerous’ to be around young people. Thankfully my Manager didn’t agree and I worked for three happy years there.
I now work in a place where we support people with a variety of issues and discrimination in the workplace is a common one, and sadly a lot of it is specifically towards people with a mental illness. As other’s have commented, it can be difficult to prove and a tribunal can add so much stress that often people end up pulling out and Employers are not held accountable. I’m not sure what the answer is, but I definitely think more needs to be done.
Love u xo
I’m having this problem now. I am on disability and I’m searching for work. Every interview goes well but once I tell the employer I’m on disability suddenly they will be “ in touch”.
I was just turned down for a job I had in the bag . I had 2 interviews and the second couple that interviewed me for the same job decided it best to lie to Human Resources that I refused to drive their van and haul patients around which is a lie and the Human Resource lady knew it was because she had already asked me in the first interview if I was okay with that part of the job.
I’m desperate to get a supplemental income but the world is against me because I’m disabled.
That’s so frustrating. It really shouldn’t have to be like that.
They had the nerve to ask me to look for someone else for the job. I’m humiliated
Oh no that’s horrendous!
A powerful read! 😉👌
Thank you!
I have social anxiety. With my job, I am lucky to still have it. I have been searching a new job where I can earn more money but my social anxiety makes interviews difficult. I get too nervous and mess up. I also become very closed off emotionally in interviews. I feel like employers go by personality more than experience and that is why it is difficult for me
I wish there was a more civilized alternative to the common way of doing job interviews. It should be experience and ability that matters, not the ability to put on a show in an interview.
I am schizophrenic, bipolar, and alcoholic. I have been turned down for jobs based on the employer’s perception of my ability to handle them. I resented this but agreed with them. The jobs were fast paced work and I was slow. One job was at McDonalds and the other was folding newspapers. I did not like being rejected. These jobs were up north, after my father’s death, when I had to fend for myself. When I came back to the Cities, I went on SSD and got a part time job as a bag boy. My psychiatrist thought I would not last two weeks. The company retired my jacket two and a half years later. Every time I quit a job in town, I got a new one, often custom made for my talents. I have customer service skills and a lot of experience in that area. My doctors warned me to never disclose my illnesses to my employer. I took a chance last year and told the boss and my coworkers at Walgreens I had mental problems. They thought nothing of it. Sometimes I think my new boss keeps me locked in as a cashier. Everyone in the place read my book about my struggle with mental illness. However, I am not sure I would tell them that in a job interview. There is no reason for them to know and it is illegal for them to ask. I hate leading a double life.
Yes, it’s a hard position to be in. I’m glad Walgreens responded well.
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