Mental health discrimination can occur in the workplace in various forms, such as harassment, bullying, and negative stereotypes. Unfortunately, it is still prevalent in many workplaces across Canada, despite the legal protections that exist for employees with mental health conditions. As an employer, it is your responsibility to create a supportive and inclusive workplace that accommodates all employees, including those with mental health conditions.
Numerous employees experience mental health challenges, whether due to personal issues, financial difficulties, or job-related stress. As an employer, it is your responsibility under human rights legislation to provide accommodations for employees with mental health concerns. In this guide, we will define mental health discrimination, outline the relevant laws, and offer tips on preventing it in the workplace.
What is mental health discrimination?
Mental health discrimination in the workplace occurs when an employee is subjected to unfavourable treatment compared to others. This may involve being disadvantaged due to a mental health condition that is considered a disability, either through personal experience or perception. Disability is a protected ground under Canadian human rights legislation, and discriminatory treatment based on this factor is illegal and may result in liability for the employer.
What are the different forms of discrimination?
Various types of discrimination can occur towards an employee due to their mental health or illness. These forms of discrimination comprise:
- Direct discrimination
- Indirect discrimination
Employers may be held liable if managers engage in discrimination towards an employee based on their mental health status.
What is the law in Canada regarding mental health discrimination?
In Canada, mental health discrimination is protected by human rights legislation, with each province having its own established set of laws. For instance, in Ontario, human rights protections for provincially regulated workplaces are provided by the Ontario Human Rights Code. Other provinces with their own codes include British Columbia, Alberta, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, and Newfoundland & Labrador. Federally regulated employees are protected by the Canadian Human Rights Act, which covers industries such as telecommunications, interprovincial transportation, and broadcasting.
Apart from human rights legislation, employers are also obligated to ensure a healthy and safe workplace in line with occupational health and safety laws. This includes creating a secure working environment that fosters employee well-being and providing resources to equip managers to handle mental health concerns of their staff.
What are some examples of mental health discrimination at work?
Below are common examples of employees being discriminated against based on mental health:
- An employee is disciplined for being absent from work because of their depression.
- A policy that directly or indirectly excludes an employee based on their disability.
- An employee with anxiety is constantly passed over for promotion in favour of less qualified candidates.
- A supervisor makes derogatory comments about a colleague with bipolar disorder and spreads false rumours about their performance at work.
- An employee with a history of depression is told to “toughen up” when requesting accommodations for their work environment.
- A company refuses to hire someone with a history of anxiety, even though the candidate has the necessary qualifications for the job.
Can employers discriminate against mental health?
Employers are prohibited by law from discriminating against mental health in the workplace. Under human rights legislation, employers have an obligation to accommodate their employees with disabilities, including mental health concerns, to the extent of undue hardship.
The duty to accommodate means employers must adjust workplace rules, policies, or practices to allow employees to participate fully and remove any barriers that individuals with disabilities may face. Employees also have a crucial role in the accommodation process and should cooperate, share information, and help find solutions to implement the accommodation plan.
In addition to the duty to accommodate, employers should also be aware that complaints related to anxiety, depression, and stress may trigger a duty to inquire. This involves asking employees questions if they appear to be struggling or not acting like themselves. Employers who recognize an employee is experiencing difficulties cannot turn a blind eye and must offer support and ask if additional accommodations are necessary.
Failure to accommodate employees with mental health disabilities may constitute a breach of human rights legislation and result in legal action being taken against the employer.
What can I ask when accommodating an employee?
When an employee requests an accommodation due to a mental health concern, it’s crucial to obtain relevant information to provide full support. Employees are generally expected to provide details on:
- Limitations or needs related to their disability
- Tasks they can and cannot perform
- Accommodations required to perform their job duties comfortably and competently
However, it’s important to avoid intruding on an employee’s privacy while obtaining this information. Employers cannot ask for a medical diagnosis, medication list, or treatment plan. Employees have a right to privacy regarding their health conditions. Thus, the information requested must strike a balance between providing adequate information to support the employee and respecting their right to privacy.
Do i have to treat the employee through their mental health concerns?
An employer is not required to treat an employee’s mental health issues under the duty to accommodate. Employers are not qualified to provide counselling, treatment, or medication to an employee. Alternatively, you may suggest the employee speak with a qualified professional familiar with treating mental health disabilities.
How can I prevent mental health discrimination in the workplace?
To foster an inclusive workplace that avoids discrimination against individuals with mental health concerns, consider implementing the following tips:
- Ask the employee what changes they would like to see implemented.
- Be open to all the employee’s suggestions.
- Create a supportive working environment in which employees feel able to openly discuss their mental health issues without fear of reprisal.
- Regularly review any accommodations made to ensure that they are working.
- Take steps to create a psychologically healthy workplace.
- Develop a mental health policy for your workplace.
Do you need help updating your HR policies to be more inclusive and free from discrimination?
Employers have a responsibility to ensure that their workplace is inclusive and free from mental health discrimination. By taking proactive steps to prevent this discrimination, you can create a workplace that is respectful, welcoming, and supportive of all employees.
A key part of fostering a workplace free of discrimination is to have well-drafted anti-discrimination policies in place. Our HR advisors can help you create, update, and review company policies, as well as provide any advice you may need on HR, health and safety, or employee management.
To learn more about how our services can benefit your business, call an expert today at (1) 833 247-3652.