Hiring and Potentially Unlawful Employment Practices

Twice in the last week I’ve been confronted by the issue of asking employment applicants whether they have any health or disability-related needs or requirements. First at a Human Resources Institute diversity event, and then on the application form for a part-time position I have applied for.

The practice seems quite prevalent among employers, who seem unaware that it is a potential breach of human rights. Based on the four years I spent working for the Human Rights Commission, let me explain what the problems, risks and solutions are.

The Problem

Section 23 of the NZ Human Rights Act 1993 states:

Particulars of applicants for employment

It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22.

Section 22 of the Act says that, if an applicant is qualified for the particular job, an employer cannot refuse or omit to employ the applicant; offer or afford the applicant or the employee less favourable terms of employment, terminate the employment of the employee, subject the employee to any detriment, or retire the employee, by reason of any of the prohibited grounds of discrimination, of which disability/illness is one.

The employment application I filled in asked:

• Do you have any health conditions that may affect your ability to effectively carry out the functions and responsibilities of the position you are applying for? If yes, please give brief details.
• Please list any special requirements, on health or personal grounds, you may need us to consider if you are employed with us.

The Risk

By asking these questions, and by my answering them, the employer puts itself at risk. If I do not get an interview, I may reasonably suspect that I have not been shortlisted because of my answer. I could then complain to the Human Rights Commission that I was not offered an interview because the employer did not want to employ me because of my disability. The onus is on the employer to prove I was less qualified than the person they employed.

Even if I do get an interview but not the job, I may reasonably expect that I wasn’t chosen because of my disability. A further mistake employers make is to ask these questions at interview — again, it puts the employer under suspicion of disability discrimination and, if faced with a complaint, they must prove the person employed was more highly qualified than the disabled candidate.

The Solution

Mitigating the risk is quite simple.

For the candidate:

• You are under no obligation to answer questions about your health or disability status on application forms, so don’t. I simply wrote, for both questions, “I will be willing to answer this question when and if an offer of employment is made (refer s23 Human Rights Act 1993-NZ).”
• If you are asked similar question in an employment interview, say the same thing.
• If you are offered the job, be willing to discuss your needs openly and honestly and, if need be, offer solutions to any problems that may impact on your ability to do the job.

For the employer:

• Do not ask questions about health or disability status on application forms or in employment interviews.
• When you come to offer to offer a candidate a position, this is the correct time to ask about health and disability status — for any candidate, as not all illnesses or impairments are visibly obvious.
• An employer has a responsibility to offer reasonable accommodation of an illness or disability, but only if the accommodation does not cause undue hardship to the employer’s operation or other employees. Accommodations may be things like flexible hours, a slight change in duties or, in some cases, assistive equipment. (See more about being an accessible employer here.)
• Working out whether an accommodation is reasonable or not can best done in a transparent conversation with the favoured candidate. Remember that, if they are your preferred choice, making changes will be balanced by having the best person for the job. Remember too that a qualified candidate will most likely have developed ways to manage the impact of their illness or disability. Take notes about the discussion, the suggested accommodations, whether or not you consider them reasonable and why.
• If, after discussion with the candidate you feel there is no way to accommodate their needs without undue hardship, you may need to withdraw your offer of employment. The candidate may disagree and complain, but a clear record of the discussion will help you prove that you have been reasonable in considering the candidate’s needs.