September 17, 2012
Under the Ontario Human Rights Code, people with mental health disabilities or addictions have the right to be free from discrimination and harassment under the ground of disability in five social areas: housing, employment, goods, services and facilities, contracts, and membership in unions, trade and professional associations.
However, a while back, the Ontario Human Rights Commission (OHRC) was told that people with mental health disabilities and addictions continue to experience significant marginalization and exclusion. Hence, they embarked on a province wide consultation to identify factors that undermine the opportunities for people with mental health disabilities and addictions to fully take part in the economic, social and cultural life in Ontario.
On Thursday, September 13, 2012, the Ontario Human Rights Commission (OHRC) released Minds That Matter: Report on the consultation on human rights, mental health and addictions , which is the result of what they heard from the consultation and sets out a number of key recommendations and commitments to address human rights issues that affect people with mental health disabilities or addictions.
The report points to widespread discrimination and harassment in employment as well as housing and services against people with mental health disabilities or addictions. This discrimination is demonstrated in stereotypes and negative societal perceptions about people with psychiatric and addiction disabilities rooted in institutional policies and practices, individual attitudes and some types of legislation.
In addition, it was realized that there are many people who are afflicted with mental health and addiction who are not aware of their rights.
Section 12 of the report deals specifically with employment; overall, some employees with mental health and addiction described their employment experiences positively, telling the OHRC about employers that were responsive and respectful of their human rights based on disability.
However, others reported how they were treated inequitably at work due to experiencing a psychiatric disability or addiction, which may or may not have been accommodated. They heard repeatedly how people had a change in their job duties or total restructuring of their positions after coming back from a disability-related leave or after their employers found out they had a disability. People reported experiencing demotions, their hours being decreased, changes in job assignments, and dismissal.
They heard that employers may assume that people with psychosocial disabilities lack the ability to do their jobs, are unreliable, or cannot handle the stress of the workload, particularly after a disability-related leave.
These are a few employment related statements heard by the OHRC during the consultation,
- Discrimination and loss of jobs, long periods of unemployment, low education levels, or symptoms related to disability can make it very difficult for people with psychosocial disabilities to enter or re-enter the workforce. This was especially true for people with severe disabilities. People with mental health issues and addictions have unemployment rates higher than the general population and people with other types of disabilities. Less than half of people with “emotional disabilities” are in the labour force at all (either looking for work or employed)
- Between one-third and one-half of people with mental illnesses report being turned down for a job for which they were qualified, experienced dismissal, or were forced to resign
- People with severe or very severe disabilities as a group appear likely to be either unemployed or employed in part-time, low-income positions, compared to people without disabilities
- When persons with mental health issues do enter the workforce, they are relegated to low-wage jobs, which results in cycling back and forth between social assistance and unstable work. The result, people with mental health issues or addictions are much more likely to live in poverty than people with other types of disabilities or without disabilities
- When people are denied accommodation in the education setting, this will affect their employment opportunities. Barriers faced in the education system may also lead to low levels of literacy and education achievement, which will affect employment opportunities as well as the ability to locate and access services that will improve people’s skills
- Systemic barriers to employment were created by having non-criminal contact with police recorded and disclosed as part of a police record check. Police records are created and document mental health information when police take someone to hospital under the Mental Health Act. As part of a job applicant’s background check, this information can then be released to potential employers, volunteer agencies, or education programs that work with vulnerable clients. Many people reported having been denied job, volunteer and education opportunities because their police background check revealed that they had a mental health disability
- During the interview process, employers may make judgments about a job seeker’s ability to do the job based on their appearance, which may be affected by the side-effects of medication, symptoms of disability or poverty-related factors. These judgments may contribute to not hiring someone for a job. If people have lost their jobs previously due to disability-related behaviour that was not accommodated, they may not have employment references needed for future positions
- Employment processes that asked questions about people’s medical history, including a history of psychiatric treatment, list of hospitalizations and medication, for jobs that did not require them, such as non-safety-sensitive positions
- Several people said that they had to hide their past experience volunteering or working for a consumer/survivor initiative, a mental health agency, in a peer support role, or even gaining vocational experience through a program designed to assist people with mental health issues, because this information could indicate that they have a mental health issue. They feared it would result in denied employment opportunities
- Employment agencies and several job developers who find employment for people with psychiatric disabilities said that some employers will say that they do not want to work with people with mental health issues, or they hold negative stereotypes about people’s ability to work
To my surprise, to this day, employers are stating that they still need clarity on what disability related information an employer is entitled to know during the application process, and on the job. Many people with disabilities still did not know that they generally do not have to disclose their diagnosis to an employer.
Recommendations and commitments
The report contains 54 recommendations for government and organizations across Ontario and 26 commitments that the OHRC is making to advance human rights for persons with mental health disabilities or addictions.
Of interest to employers, the following recommendations are put forward,
- The Accessibility Directorate should consult with people with psychosocial disabilities and disability groups to evaluate the current AODA standards to see how well they take into account the needs of people with psychosocial disabilities. Based on the feedback from consultees, the standards should be modified to take into account any additional accessibility requirements
- The Accessibility Directorate should develop and promote further education materials that show how the AODA specifically applies to people with mental health disabilities or addictions, so organizations understand their responsibilities towards people with psychosocial disabilities
- The Ontario Association of Chiefs of Police OACP and other agencies should actively promote implementation of the OACP police record check guideline across police services, vulnerable sector agencies and other employers including the Government in Ontario. This guideline shows police services how to conduct police record checks for people seeking either work or volunteer opportunities. The OHRC worked with the OACP to provide a human rights perspective, and to outline protections under the Code for persons with disabilities, with a focus on people with mental health issues
- The Government of Ontario, the private sector and the non-profit sector should create new opportunities for special employment, supported employment, alternative businesses, employment equity practices and other special employment programs for people with mental health issues and addictions
- The Government of Ontario, the private sector and the non-profit sector should review their hiring, promotion, retention, discipline, accommodation and termination policies to remove discriminatory impacts on people with mental health disabilities and addictions to ensure equal opportunity
- The Government of Ontario and the Workplace Safety and Insurance Board should change the WSIA and the policy provisions governing workplace insurance benefits to reflect recent legal decisions. They should ensure that there is equality of benefits for people who experience physical disabilities and people who experience mental health disabilities as a result of workplace incidents
- All employers should develop human rights policies and procedures outlining their organization’s obligations under the Human Rights Code, including the duty to accommodate people with psychosocial disabilities to the point of undue hardship. Employers should ensure their human rights policies identify that people with mental health issues and addictions are protected under the ground of disability, and eliminate systemic barriers in the workplace (such as in their organizational culture) that may exclude or disadvantage people with mental health issues and addictions
- All employers should train their employees and managers on their responsibilities under the Code regarding the human rights issues that affect people with mental health disabilities and addictions. This training should address preventing and responding to discrimination and harassment, systemic issues affecting people with psychosocial disabilities and the duty to accommodate
One of the 26 OHRC commitments of interest to employers is to create a policy on human rights, mental health and addictions that will offer concrete steps people and organizations across Ontario can take to prevent and eliminate barriers that are so common today.
Another commitment includes the OHRC and the Ministry of Labour will discuss the impact of disclosure requirements under the OHSA on people with mental health issues, and consider how this issue could be monitored and addressed.
To help with developing its policy, the OHRC wants to hear feedback on the consultation report. Individuals and organizations are invited to provide their comments in writing to the OHRC by November 9, 2012.
The new OHRC policy on human rights and mental health is anticipated for release in 2013.
First Reference Human Rights and Compliance Managing Editor