Introduction
Stigma
Unlawful discrimination
Accommodating disability
Harassment

Introduction
Many people with psychiatric disabilities are reluctant to disclose them in the workplace for fear of discrimination and harassment. At the same time, some employers are unclear about their obligations to employees with psychiatric disabilities. Margaret White, one of the Board's Senior Workplace Relations Consultants, looks at the legal issues.

When Rajiv Oberoi lodged complaints of race discrimination with the Human Rights and Equal Opportunity Commission, the investigator reported to HREOC that Mr Oberoi's perception of events was affected by his depression, and therefore lacked credibility.

After his initial complaints were dismissed, Mr Oberoi lodged another complaint alleging that the investigator had discriminated against him. The magistrate held that Mr Oberoi had received less favourable treatment than others in the same or similar circumstances because of his psychiatric disability. He was awarded $20,000 compensation (Rajiv Oberoi v Human Rights and Equal Opportunity Commission, [2001] FMCA 34).

Mr Oberoi's experience highlights one of the many problems confronting people with psychiatric disabilities - it can be hard to get others to take you seriously, especially if you disagree with them!

Stigma
Psychiatric disabilities carry a stigma based on uninformed ideas about dangerousness, drug dependance, personal inadequacy, and unpredictable, bizarre behaviour. It is popularly believed that people with depression, anxiety or stress-related disorders should pull themselves together and that medications for these disabilities are grossly over-prescribed.

A survey conducted by the American National Mental Health Association in 2001 found that one third of respondents met the diagnostic criteria for either depression or anxiety. However, only 18% had ever sought treatment, and 42% of those were ashamed of their condition.

It's no wonder that most people with psychiatric disabilities choose not to disclose that fact to their employer or their colleagues, so that psychiatric disability is 'the disability that dares not speak its name'. People with physical and sensory disabilities have made important gains in their quest for equitable treatment, but people with psychiatric disabilities have to confront even greater challenges in combating community views.

People do not have to disclose a disability when accepting a job. In Randell v Consolidated Bearing Co ([2002] FMCA 44), an 18 year old with dyslexia was awarded $4,701 for lost wages and $10,000 for hurt, humiliation and distress when he was unfairly dismissed, despite the fact that he had not disclosed his disability when he was employed.

Once employed, people with disabilities are entitled to be treated equally and must not be discriminated against, either directly or indirectly, merely because they have a disability. The ADA does permit employers to consider a person’s disability in relation to hiring and dismissing an employee, but only in cases where enabling the person with the disability to perform the inherent requirements of the position would require the employer to provide accommodation to such a level that it would impose an unjustifiable hardship on them. However, it is hard to define what ‘accomodation' may be required in relation to a psychiatric disability, which may be unpredictable in its effects.

The case law is much clearer about what accommodation might impose an unjustifiable hardship. In Oreb v Discovery Clothing Co. P/L ([2001] NSWADT), Ms Oreb had been on leave suffering depression and anxiety, and was dismissed after six months because she was unable to say when she would be coming back.

The Administrative Decisions Tribunal decided that she had not been unlawfully discriminated against, as she had not been treated less favourably than other people who had been absent for six months and couldn't say when they would return. Also, Ms Oreb was not able to show that the problem could be solved in any other way - by, for example getting in a temp, which would have reduced the hardship to her employer. If she had, her continued leave might not have imposed an unjustifiable hardship on her employer.

In another case, a prison guard who was assaulted by two prisoners suffered serious depression as a result. Over the next six years he had large amounts of sick leave and long periods on restricted duties. He claimed that he was discriminated against on the ground of his disability when his employer threatened him with dismissal.

Once again, the Tribunal decided that the amount of leave needed was not acceptable in the circumstances. It decided that, given his illness and the stressful nature of the work, he could not meet the inherent requirements of the job without placing an unjustified burden on his employer (Rabadi v Commissioner of Corrective Services, [2002] NSWADT 23).

It is also unclear what accommodation might be required for a person's poor behaviour or performance. For most people with psychiatric disabilities, the disability is well-controlled, perhaps with medication, all or most of the time.

However, some may experience periods of illness, accompanied by difficult behaviour, such as irritability or withdrawal. Their performance might also be impaired, for example by poor concentration or lack of motivation.

If a person's behaviour is putting themselves or others at risk, it is undoubtedly reasonable to insist that they take leave until they are well. If the behaviour is persistent, it may be necessary to eventually terminate their employment. However, the only case law applying to this involves children with disturbed behaviour in school, and that is controversial and not very clear.

One example is the case of Purvis v State of NSW (Dept of Education) ([2002] FCA 503). Daniel Purvis has an intellectual disability which causes behaviour problems such as rocking, humming, swearing, hitting and kicking.

He was excluded from school and his father complained to the Human Rights and Equal Opportunity Commission that he had been discriminated against.The Deputy Disability Commissioner agreed, saying Daniel's behaviour was 'part of' and 'closely connected' with his disability.

On appeal the Federal Court said the DDC was mistaken. It said that Daniel was excluded because of his behaviour not his disability. It also said that the test was not whether Daniel was treated less favourably than others, but whether he was treated less favourably than others 'in the same or similar circumstances'. Other students who behaved like Daniel would also have been excluded.

Accommodating disability
In any event, determining what accommodation may be required, and what might impose unjustifiable hardship on an employer, involves an individual balance of costs and benefits. An employer who is concerned about the effects of a psychiatric disability is not entitled to insist that the person go back on his or her medication.

However the employer can ask for a medical or psychiatric report dealing with the tasks, responsibilities, skills and competencies needed in the particular job. An employee who refused to provide such a report would risk dismissal (O'Brien v Recycled Resources Pty Ltd, [2000] NSWADT 193).

Ideally, arrangments relating to accommodation will be arrived at by agreement between the employer, the employee and the employee's doctor, psychiatrist and/or case worker, or brokered by a workplace mental health consultant. An employment support service for people with mental illnesses might also be able to help, particularly if the person's continued employment is at risk.

In fact, failing to obtain help from an available support service may constitute less favourable treatment. In Randell v Consolidated Bearing Co ([2002] FMCA 44), the magistrate found that Mr Randall was treated less favourably in the same situation because CBC had called in assistance for other trainees who were having difficulties. If he had received the available assistance and was still making mistakes at the end of his period of probation, CBC could have argued that he could not fulfill the inherent requirements of the job.

A management plan should set reasonable standards of behaviour and performance, outline the rights and responsibilities of both parties and include guidelines for dealing with any problems that might arise.

As is the case with other types of harassment, language can also cause distress, intentionally or unintentionally. Talk about 'psychos' or 'loonies' or 'mad houses' can be seriously hurtful to someone who has, or whose family member has, a mental illness.

People whose disability has become known, report harassment of a more hostile kind. The ADB has had reports from people accused of being 'on drugs', being ostracised or unfairly blamed for problems, and, in one case, being bullied by a boss who thought that all they need was 'toughening up'!

As with any other type of harassment, employers have a responsibility to take reasonable steps to prevent harassment because of psychiatric disability, or because a relative or friend has a psychiatric disability. Managers and supervisors should monitor issues such as the language used within the workplace.

Ignorance and thoughtlessness are the main culprits. Until people with mental illnesses can safely speak openly of their disabilities, psychiatric disability awareness training is probably the best way to get across the fact that mental illness is neither funny, inherently dangerous, contemptible, nor rare.