Mental Illness and Employment Discrimination

Heather Stuart

Disclosures

Curr Opin Psychiatry. 2006;19(5):522-526. 

In This Article

Employment Equity Legislation

Disability issues have figured prominently in the international policy agenda during the past two decades. The discourse has moved away from specialized (and segregated) solutions to emphasize social and legal obligations to employ people with physical and mental disabilities. Entry into employment is now widely considered to be crucial for the social integration of people with disabilities and most economically advanced countries have enacted antidiscrimination legislation to support people with disabilities to become actively employed.[44,45**,46] The philosophical roots of contemporary antidiscrimination legislation are in a social model of disability that views disability as the product of society's attitudinal and structural barriers, rather than the result of an individual's physical or mental impairment. Employment equity acts that have adopted a social model of disability have increasingly converged around three key issues: the need to promote greater employment equity for persons with physical and psychiatric disabilities; the outlawing of occupational discrimination of disabled workers in recruitment, retention and promotion; and the requirement for employers to make reasonable accommodations for disabled employees.[44,47]

Employer attitudes play a central role in the success of antidiscrimination legislation, the extent to which disabled people are accepted into occupational life and the extent to which reasonable workplace accommodations are made.[48] Recent research shows that support from employers for equity and workplace accommodations has been poor,[48] and compliance with legislative requirements has been problematic.[49*] In the United States, for example, mental disorders are the second most common basis for charges of discrimination and workplace harassment under the Americans with Disabilities Act.[19] Of the 263 disability cases brought to trial in 2004, only 2% of the decisions (n = 6) favoured the employee, 74% (n = 194) favoured the employer and 24% (n = 63) were unresolved. A total of 54 cases (21%) were brought forward by people with a mental disability. Of these, 76% (n = 41) resulted in employer wins, 24% (n = 13) were unresolved and none favoured the employee. Eight cases involved people with substance disorders. Of these, 75% (n = 6) resulted in employer wins, 25% (n = 2) were not resolved and none favoured the employee.[50*] An inability to convince the court that a mental impairment resulted in a significant disability often precluded a claimant from being able to present a persuasive argument about an employer's discriminatory treatment or failure to provide reasonable accommodations. This was particularly true in cases in which the illness was episodic and the disability intermittent or when symptoms appeared to be well controlled.[21*]

A major dilemma for employees is whether to divulge a mental illness to their employer. In order to request workplace accommodations, employees or prospective employees must disclose the fact that they have a mental disorder that limits their capacity to work. Disclosure of a mental illness may, however, undermine employability, result in dismissal or jeopardize career advancement. The literature on disclosure is generally sparse. As yet, there is no consensus as to how disclosure should be managed to avoid stigma or to ensure that appropriate workplace accommodations are made. Mental health consumers often recommend withholding psychiatric information altogether as the only way to avoid stigma and discrimination.[36] Others have suggested that negative perceptions may be minimized by delaying disclosure until the employer and coworkers become comfortable with the employee and their work performance.[51*,52**] Recently, a number of different disclosure options have been described, ranging from full disclosure to selective (partial) disclosure, inadvertent disclosure, strategically timed disclosure and nondisclosure - but none with foolproof results.[51*]

The most significant benefits to consider in making the decision to disclose a psychiatric disability include eligibility for protection against discrimination under antidiscrimination legislation; access to workplace accommodations such as flexible hours, advocacy and support from a third party such as a job coach; access to employment as a peer counsellor in the mental health system; and a host of psychological benefits such as increased self-esteem and reduced stress associated with ongoing concealment. Risks include decreased employment options such as not being offered a job, having an offer of employment withdrawn, missing a promotion, being fired, being laid off, not being provided with reasonable accommodations or being subject to greater supervision; social risks such as being subject to stigma, disrespect or outright harassment from coworkers; and psychological and health risks resulting from stress and distress. Although there are no best-practice guidelines for disclosure of disabilities, MacDonald-Wilson[52**] has offered a comprehensive review of literature summarizing the factors to consider as well as a helpful series of steps that can be followed to assist in making a decision to disclose and to manage the disclosure process.

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