SEMINAR SERIES:
DISABILITY, HUMAN RIGHTS AND THE LAW
2012-13
Beyond Stigma and Exclusion:
International Reforms for Mental Health in the Workplace
30 January 2013
Resource Persons:
Me Derek J. Jones (Research Group on Health and the Law, Centre for Human Rights and Legal Pluralism,
Faculty of Law, McGill University)
Professor Anna Lawson (Deputy Director: Interdisciplinary Centre for Disability Studies, University of
Leeds)
Professor Colleen Sheppard (Director, Centre for Human Rights and Legal Pluralism, Faculty of Law,
McGill University)
Moderator: Melanie Benard (B.C.L./LL.B. 2012, Faculty of Law, McGill University)
Organized by: Centre for Human Rights and Legal Pluralism, McGill Human Rights Working Group –
Disability and the Law Portfolio
Summary of Seminar
Particularly over the last decade, mental health in the workplace has emerged as a poignant human
rights, health, financial, management, and employer-employee relations issue. Its dynamics have
been studied by international human rights, health, labour and economic organizations, as nations
have sought to better understand the phenomena and outline standards and policies for reforms.
How may they do so in a manner consistent with the United Nations Convention on Rights of
Persons with Disabilities (CRPD) and domestic human rights commitments? This seminar
provided a forum to sample some legal and policy responses in three countries: Canada, the UK,
and the US. The seminar began with each resource person presenting brief remarks.
Derek J. Jones began by highlighting the foregoing confluence of initiatives by the international
community on mental health in the workplace, noting that they present a unique opportunity for
interdisciplinary research and policy reform. He indicated that, in research with Professor
Sheppard, they are urging comprehensive mental health in workplace policies (mhwp) to address
key phases and elements of the employment trajectory: from pre-employment screening, to
management training, occupational health services, accommodation standards, and return to work
protocols. Me Jones argued that under this approach, privacy/confidentiality norms function as key
pillars for mhwp in tandem with equality standards to structure access to, and minimal sharing and
use of, personal health information. To illustrate, he portrayed US reforms adopted in pre-
employment mental health queries. For entry into the legal profession, some state licensing boards
have asked applicants whether they have ever used medications or been counseled for mental
health conditions and addiction. Some defend such questions as valid fitness and character
inquiries to prevent injury or harm. Others critique them as unjustifiable invasions of
confidentiality, overbroad and discriminatory, and which deter applicants from seeking treatment.
The debate has been litigated since passage of the American with Disabilities Act of 1990. Some
states have struck such questions; some have narrowed them; others have upheld them. He argued
that even if mental health information might be legitimately disclosed, employers have duties to
strictly limit its use and diligently manage non-discriminatory applications through the rest of the
employment cycle.
Colleen Sheppard pointed out that, despite the protections at the national and international levels
against stigmatization and discrimination on the basis of mental health issues, as well as privacy
protections, a gap exists between law and practice. Professor Sheppard noted that one challenge
lies in terminology. She cited the Canadian Charter of Rights and Freedoms which prohibits
discrimination on the basis of mental or physical disability, noting that mental disability is a broad
category covering intellectual or developmental disabilities as well as mental health disorders.
Most of the work done in this area refers to mental health disorders, another broad category
covering anything from severe mental disorders to stress and situational depression. This reference
to mental disorders raises the difficult question of how to reconcile the law on mental disability
within medicalized categories. She went on to note that the privacy/ discrimination interface
results in a “difference dilemma”: should employees keep confidential or
reveal a health
condition in order to receive accommodation at work, with the risk of being subject to stigma and
discrimination for the condition? One response to this dilemma is to adopt initiatives that destigmatize mental health issues. Another is to change institutional policies and practices for
everyone, not just those with mental health conditions. These responses resonate with the
reasonable accommodation and universal design themes recognized by the CRPD.
Anna Lawson noted that “reasonable adjustment” duties (the UK equivalent of reasonable
accommodation) have been in place in the UK since 1995, but few cases have reached the courts,
leaving it unclear how this duty will be interpreted in the future. In one case, the court held that a
school had failed in its reasonable adjustment duty by not providing teachers with awareness
training with respect to the treatment of a child with attention-deficit disorder. Professor Lawson
suggested that this decision may have implications in the employment context in that it may place
a duty to inform and raise awareness about mental health issues among employees. She also stated
that the 2010 Equality Act imposed a ban on pre-employment health checks. Exceptions to this ban
include the need to make adjustments to the interview itself, the need to create positive action
schemes in favour of persons with disabilities, and cases where the existence of a particular
disability is a job requirement. Professor Lawson then discussed the public sector equality duty in
the UK requiring all public sector bodies to promote disability equality in the organization’s
decisions and policies.
When the floor was opened for comments, the bulk of the questions raised were of practical
significance. One participant asked whether employers can use the perception of risk to prove
undue hardship as a defense where it is alleged that the employer failed to discharge the duty of
reasonable accommodation. Another participant asked how institutional policies can be effectively
changed to protect employees with mental health conditions.