ACCOMMODATING MENTAL HEALTH DISABILITIES In the Workplace Sylvie Gauthier Discrimination Prevention Officer, CHRC April 2016

OVERVIEW Canadian Human Rights Act The Cycle of Mental Health Discrimination Duty to Accommodate BFORs/BFJs Undue hardship Policy on Accommodating Mental Health

Canadian Human Rights Act PURPOSE “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, …, without being hindered in or prevented from doing so by discriminatory practices.”

Canadian Human Rights Act Lists the 11 grounds of discrimination; Outlines discriminatory practices; Ex. It is a discriminatory practice to prevent someone from employment opportunities because of a disability; Affirms employers obligation to accommodate; The CHRA is Quasi constitutional.

Prohibited Grounds Race National or Ethnic origin Colour Religion Age Sex Sexual orientation Marital status Family status Disability Pardoned or suspended conviction 5

Discriminatory Practices relating to employment Section 7 – employment (recruitment & promotion) Section 8 – job application/advertising Section 9 – employee organizations Section 10 – policies or practices Section 11 – equal wages (pay equity) Section 14 – harassment Section 14.1 – retaliation Section 15 – accommodation 6

In the Act “disability” means any previous or existing mental or physical disability Mental disabilities include: Mental illnesses; Mental disorders; Cognitive, developmental, or learning disabilities; Addictions; and Perceived disabilities.

Cycle of Discrimination related to Mental Health Disabilities 8 Mental Health Disability Stereotypes, discrimination, adverse treatment Internal Policies Termination No efforts made to accommodate Exclusion, unemployment, isolation

ACCOMMODATION MEANS... Achieving substantive equality. Respecting people’s different needs and meeting them. Ensuring that everyone has the same opportunities. Designing policies and practices with inclusion in mind.

SUBSTANTIVE EQUALITY Age Sex Disability Person 1 Person 2 Same opportunities NeedsCharacteristicsOutcomes

Guidelines Communicate openly with the employee and gather information by determining the employee’s abilities and limitations; Consider options and offer reasonable accommodation based on employees needs not wants; Balance ensuring a safe workplace and creating a respectful workplace where there is no discrimination. Implement accommodation plan and review at a later date. Doing nothing is not an option.

Medical Information Employees have a right to privacy Employers have a right to some medical information. Employers need enough information to be able to provide accommodation. For complex cases employers can use a functional abilities form

Segment of a Functional Abilities Form

A Bona Fide Occupational Requirement or Bona Fide Justification is a discriminatory standard, rule, or practice considered necessary to do the job or to provide a service.

For a practice to be considered a bona fide occupational requirement or a bona fide justification, it must be established that accommodation would impose undue hardship on the person who has to accommodate those needs.

WHAT IS UNDUE HARDSHIP? It is the limit to the Duty to Accommodate (DTA) Neither legislation nor the courts have defined it It is more than an “inconvenience” It is established by a case-by-case analysis of three factors: – Costs – Health – Safety

DESIGNING INCLUSIVE POLICIES The DTA is also the obligation of designing and implementing inclusive policies; Review policies when new business objectives are established; or when existing standards are determined to be discriminatory; Describe the objective; identify the options, and choose the least discriminatory.

Factors Affecting Mental Health in the Workplace Psychological Support Organizational Culture Clear Leadership & Expectations Civility & Respect Psychological Competencies & Requirements Growth & Development Recognition & Reward Involvement & Influence Workload Management Engagement Balance Psychological Protection Protection of Physical Safety

Issues Affecting Mental Health Stigma and discrimination Demand/control and effort/reward relationships Presenteeism Job burnout Harassment, violence, bullying and mobbing Substance use, misuse and abuse at work

End of Presentations COMMENTS/ QUESTIONS

Interactive Segment

True or False Your employee has a responsibility to fully cooperate in the effort to find accommodation. This involves permitting a supervisor to gather the necessary information to make an informed decision.

Can you ask someone whether he or she has a mental illness during a job interview?

What kind of information can you ask an employee who needs accommodation, but does not disclosed detailed information about their disability?

You have noticed that an employee performance has deteriorated and you are now concerned that he may be experiencing mental health issues. Can you ask him about it? What if he denies that there is a problem?

You are concerned that an employee with a mental health problem may be a safety risk. Can you refuse to hire the person on that basis?

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