By Laura Track, Human Rights Lawyer, May 8, 2020
Part 3: Duty to Inquire
This week is Mental Health Week. To mark the occasion, we’ve published this three-part series on Mental Health and Human Rights.
In Part 1 of the series, we talked about the stigma that surrounds mental health issues, and how human rights protections work to prevent and address discrimination. In Part 2, we covered the duty to accommodate, an important human rights principle that requires employers, landlords, service providers, and other duty-bearers under the Human Rights Code to support and assist people experiencing mental health challenges.
Today, we’ll cover the duty to inquire, another important human rights principle with particular relevance in the context of mental health.
As we discussed in Part 1, there is still an unfortunate amount of stigma surrounding mental illness. Disclosing to your boss that you have a mental illness like schizophrenia, depression, bipolar, or a substance use disorder can be a very scary prospect. How will they react? Will your job be affected? Will they tell others? Will you be supported? Worries like these can prevent people from coming forward and asking for the support they need.
Without that support, the situation may get worse. Performance may suffer, attendance may decline, and other staff may not understand what’s going on, leading to misunderstandings, hard feelings, and even harassment and hurtful remarks that could themselves be discriminatory.
As discussed in Part 2, employers have a duty to accommodate an employee experiencing mental health issues. But how does an employer accommodate an employee whose disability they cannot see, and who has not come forward to ask for assistance and support?
In general, employers are only legally obligated to accommodate disabilities they know about. However, if the employer reasonably should have known that a disability might be the cause of an employee’s poor performance, absenteeism, or other issues in the workplace, they have a duty to inquire about the potential existence of a disability. Before imposing negative consequences on the employee, like discipline or termination, an employer should investigate whether a disability could be the cause of the performance issues. If it is, they must offer accommodations, to the point of undue hardship, as explained in Part 2.
These can be challenging conversations for employers and employees alike. Employers may worry that an employee will take offence at the suggestion that they’re suffering from a mental illness. Employees may be in denial about their disability, or unable to recognize that they have a problem. These conversations must be approached with sensitivity and care. Identifying the problematic behaviour, inquiring about the person’s well-being, and offering information about an employee assistance plan or other source of support is a great first step.
Employers should also take care to ensure that their perception of an employee’s mental state is not coloured by bias or stereotypes. Research has shown that women – and Black women in particular – are more likely to be labelled as “crazy” when they express emotions such as anger, and experience more negative social consequences for expressing their anger than men. Racist stereotypes about Indigenous people may result in incorrect assumptions that their behaviour is tied to a substance use disorder. Biases about mental health often involve the intersection of other protected grounds such as gender, age, gender identity, or race. An employer who observes problematic behaviour from one of their staff would be wise to take a moment to reflect on their own perceptions and potential biases, and ensure they approach the conversation with the employee with curiosity, objectivity, and an open mind.
Finally, a word about privacy. Information about someone’s mental health is among the most sensitive and personal information there can be. Employees have a duty to disclose necessary medical information that will allow the employer to understand the accommodations the employee needs and how their health is impacting them in the workplace. In some situations, employers may be entitled to request a medical assessment from a doctor. Employers must ensure they keep this sensitive information strictly confidential, disclosing it no further than is necessary for implementing the accommodation plan.
For more information on human rights and mental health, these are some excellent resources:
- Ontario Human Rights Commission: Policy on preventing discrimination based on mental health disabilities and addictions – summary (fact sheet) and full policy document
- Canadian Human Rights Commission: Impaired at Work – A guide to accommodating substance dependence
- Mental Health Works – Canadian Mental Health Association Ontario Division: Mental Health in the Workplace: An Accommodation Guide for Managers and Staff