Mental health discrimination or prudence in job applications?

It’s reasonable to expect that employers check properly whether job applicants are suitable candidates for the position. It’s also reasonable to expect job applications to not be too intrusive on a personal level.

Should an employer be able to find out whether an applicant is suffering from mental illness, being treated for mental illness or taking medication to treat mental illness?

RNZ: Job applicants face mental health discrimination – Greens

A Green Party investigation has concluded that there appears to be widespread discrimination against job applicants with mental health issues.

The investigation was launched after Green Party spokesperson for mental health Chloe Swarbrick held hui at eight universities across the country to better understand the mental health challenges facing young people.

It was during these hui that Ms Swarbrick said she was surprised to find out from people that they were being expected to disclose their mental health history on job applications so she launched an investigation.

“[We] heard some pretty harrowing and stressful stories – a number of people who were being required to offer up an entire shopping list of the medication that they’re on, other people who believe that they had been prejudiced from the job application process and denied the opportunity to prove their skill set.”

A number of the 59 submitters expressed concerns about what their mental health or medication information would be used for.

“What was highlighted was the number of people who weren’t given clarity around what that information was going to be used for but also, I think what people have to realise is that in a job application process there is a massive power imbalance.

“So when somebody is put in a position where they are being expected to disclose things and may not actually know their rights, that’s a really problematic situation for them to be put in.”

Perhaps that could be addressed by notifying applications of their rights in advance.

The investigation also highlighted that a number of large companies including Wishbone, Coca-Cola, Air New Zealand, New World, Countdown and PWC appeared to be avoiding hiring people with anxiety and depression.

“Rather than reinforcing a culture of stigma and fear around mental health, employers should be providing supportive workplaces and promotion well-being.”

Of course employers should provide supportive workplaces. The well-being of employees has an impact on the well-being of a business.

But employers should be able to consider whether a degree of anxiety or depression was a potential problem in someone being capable of doing a reasonable job.

Mental ‘illness’ can range from minor (and inconsequential in employment) to severe and a major risk.

We all probably suffer from some sort of mental problems at some stage of our lives – degrees of depression can vary a lot, relationship issues, stress (from work or home) can all affect just about anyone.

We already have a situation where discrimination in job applications is not allowed legally – for example on gender, age, race, religion.

But what this means in practice is that employers just have to be careful in what reasons they give for not choosing an applicant – bland ‘someone else was more suitable’ explanations are safe. Saying ‘your age of seventy five, and wanting six months off to go to China for a sex change, skin lightening and hair transplant operations as soon as your probation office and your psychiatrist allows’ risks a complaint of discrimination.

It is difficult to say how much an employer has a right to know about job applicants.

It could also be difficult in differentiating between discrimination and prudence in checking out the suitability of job applicants.

 

Colin Craig guilty of moderately serious sexual harassment

Another court has found Colin Craig guilty of sexual harassment of his ex-Conservative party assistant Rachel MacGregor.

Justice Toogood: “the seriousness of the harassment is aggravated by its origins in an abuse of power in a workplace relationship. I assess the sexual harassment as moderately serious.”

Craig continues to deny that de sexually harassed MacGregor. From NZH: Judge rules Cameron Slater defamed Colin Craig who sexually harassed Rachel MacGregor

In a statement, Craig said he was “pleased but not surprised” by the court’s decision.

But he also maintained he had not sexually harassed anyone.

“I was disappointed by a finding that I had done so on two occasions,” he said.

Craig had written poems and letters to MacGregor, which he claimed were received with positive responses at the time.

“This is a perplexing outcome,” Craig said.

“If someone tells you it’s a great letter and they are re-reading and re-reading it, I think a normal person would consider the letter welcomed.”

I find it perplexing that Craig cannot understand or accept what he has done. He was in a party leader/employer position of unequal power and abused that.

From Justice Toogood’s SUMMARY OF THE FINDINGS AND DECISIONS:

[17] For the reasons set out below, I have found that:

(a) It is not established that Mr Craig was guilty of sexual harassment of Ms MacGregor up to and including the incident on election night 2011 when there was intimacy between them, because I am not satisfied that Mr Craig’s behaviour was unwanted by Ms MacGregor at that time.

(b) It is true that Mr Craig was guilty of moderately serious sexual harassment of Ms MacGregor, on multiple occasions from early 2012 to 2014 by telling her that he remained romantically inclined and sexually attracted to her, and that those expressions of his views were not welcomed by Ms MacGregor at the time they were communicated to her. Ms MacGregor chose not to complain about the harassment because of her concern about the effect of a complaint on her
employment.

(c) The imputation that Mr Craig sent “dirty text messages” to Ms MacGregor is not strictly true, but it is materially true in substance in that he sexually harassed Ms MacGregor by communicating to her sexually oriented written messages between early 2012 and 2014 that were unwelcome.

(d) The imputation that Mr Craig sexually harassed Ms MacGregor so seriously that he settled the sexual harassment claim by paying her a six-figure sum of money is not strictly true, but it is materially true in substance in that he provided Ms MacGregor with a substantial financial benefit in exchange for her agreeing she would not pursue a justifiable claim that Mr Craig had been guilty of moderately serious sexual harassment.

[455] I infer from the timing of Ms MacGregor’s submission of the sexual harassment complaint to the Human Rights Commission on the day of her resignation that her distaste for Mr Craig’s sexual overtures was both genuine and an operative factor in her decision to resign when she did. I do not accept that the formal complaint to the Commission was contrived as a device to give her leverage in inevitable negotiations over a settlement of her pay claims

[457] Mr Craig’s continuing indications after 2011 that he retained a romantic interest and sexual attraction were unwanted by Ms MacGregor and wrong. I have found that Ms MacGregor chose not to complain about the harassment because of concern about the effect of a complaint on her employment. Although the manner of the harassment was not at the higher end of the scale of seriousness, it had serious consequences for Ms MacGregor in that it was an operative factor in the loss of her job, and Mr Craig’s post-resignation behaviour aggravated the harm she suffered.

Moreover, as I have held, the seriousness of the harassment is aggravated by its origins in an abuse of power in a workplace relationship. I assess the sexual harassment as moderately serious.

[459] It is proper and reasonable to infer that the overall financial settlement, including the benefits that that were not related to her pay claim, influenced Ms MacGregor’s decision to withdraw her sexual harassment claim. I accept her evidence that she would not have settled the sexual harassment claim without also resolving her pay claim and the issue of her debt to Mr and Mrs Craig. That means that, although no payment directly related to the sexual harassment claim was made, Mr Craig made a substantial financial settlement with Ms MacGregor in exchange for the withdrawal of her sexual harassment claim to the Human Rights Commission

The statement that Mr Craig paid Ms MacGregor a six-figure sum is not true, but the material element of the allegation – the sting – is that Mr Craig provided Ms MacGregor with a substantial financial benefit in exchange for her not pursuing a justifiable claim that he had been guilty of sexual harassment. The  potentially damaging aspects were the inference that serious sexual harassment had occurred and the inference, available from his agreement to a financial settlement, that Mr Craig acknowledged the complaint was well-founded. I have found that, in fact, the harassment was moderately serious.

[460] Taking the statement as a whole, I am satisfied that it has been proved that the third imputation, in substance, was not materially different from the truth in substance in that Mr Craig provided Ms MacGregor with a substantial financial benefit in exchange for her agreeing she would not pursue a justifiable claim that he had been guilty of moderately serious sexual harassment.

[520] For the reasons given in relation to Publication 1, I find:

(a) The imputation that Mr Craig sexually harassed Ms MacGregor is true.

(b) The imputation that he sexually harassed her so seriously that he settled her sexual harassment claim by paying her a large sum of money many tens of thousands of dollars more than what he had told the board of the Conservative Party he paid her, was materially true in substance. Mr Craig provided Ms MacGregor with a substantial financial benefit in exchange for her not pursuing a justifiable claim that Mr Craig had been guilty of moderately serious sexual harassment and misled the board intentionally about the true nature of his behaviour with and towards Ms MacGregor, the foundation and merits of Ms MacGregor’s allegations against him, and the true nature of the settlement with her.

(c) The imputation that Mr Craig sent Ms MacGregor numerous sexually explicit text messages, which were unsolicited and a form of sexual harassment is materially true in substance, in that he sexually harassed Ms MacGregor by communicating to her sexually oriented written messages that were unwelcome.

So that is a fairly comprehensive finding of sexual harassment as an employer.

Alison Mau (Stuff):  Colin Craig defamation case breaks new ground for victims of sexual harassment

In his ruling as to whether blogger Cameron Slater defamed Craig, Justice Toogood found that Craig certainly did sexually harass MacGregor – but his decision could have far greater impact for many more people than just Craig, MacGregor, Slater and the number of others Craig has sued over this sorry mess.

Justice Toogood is saying that if, as an employer, you think you can go around doing the kind of stuff Craig did to MacGregor, the court will assume it’s unwelcome. That will be the baseline assumption.

Instead of the victim having to prove your attention was unwelcome, you will have to prove that it was not.

That is, of course, simplifying things – Justice Toogood’s decision is hundreds of pages long and makes for difficult reading at times, particularly if you’re squeamish or easily embarrassed. It describes a murky situation where lines were crossed by both players at one point, and where Craig’s attention was welcomed before election day 2011 – but not afterwards.

It acknowledges the complexity of the situation, yet finds MacGregor was harassed, and has since been dragged through the courts against her will on multiple occasions.

More importantly (no offence to MacGregor), the judgment makes some powerful statements about how the courts will view sexual harassment in the future. This should give New Zealand women a tiny warm glow in the midst of the scorched-earth landscape in which survivors of sexual harassment are often left.

It talks about the power imbalance – Craig as the wealthy employer and MacGregor  as the much younger employee – and how it’s reasonable to infer the sexual conduct or language was unwelcome, “whether the complainant objected at the time of the alleged harassment or not”.

It says that as an employer, Craig should have known “that the appropriate course for him to follow was not merely to reassure her that her job was safe notwithstanding what had occurred. He ought to have assured Ms MacGregor that he also recognised that it was inappropriate for him to give any form of expression to being sexually attracted to her and thereafter to refrain from any communication or conduct of that kind”.

It answers that old chestnut, “why didn’t she complain before now?” Justice Toogood accepts MacGregor could not have been expected to do that, as she feared for her job.

This should be noted as a warning to employers and others (like politicians) in positions of relative power. It applies to both males and females.