Room for discrimination

There are suggestions that some employers may find themselves in conflict with the soon-to-be-enacted Data Protection Act by asking jobseekers to detail their medical history on application forms.

It is unclear how widespread the practice is, but two Jamaicans seeking employment earlier this month – one at a private university and the other at a government agency – are crying foul over the requirement.

One said he forfeited the application in disgust when the question came up; while the other is of the view that she was not selected for the job after declaring on the application form that she was unwilling to divulge her private health information. They were applying for marketing and administration jobs, respectively.

The Sunday Gleaner reviewed the employment application form from one entity that asked jobseekers to check ‘yes’ or ‘no’ to whether they have any existing medical conditions. If ‘yes’, they were required to detail the conditions in a space provided. Other questions on the form include details about the applicant’s address, personal life and children.

“I find it absolutely unbelievable that they would ask me this. This should not be allowed, and we are going to have to nip it in the bud before it becomes prevalent,” charged one of the prospective employees. “Because sooner or later, you are going to find that anyone with any kind of medical condition will be eliminated.”

Her cries gained support from one attorney and trade unionist The Sunday Gleaner spoke to.

According to attorney-at-law Chukwuemeka Cameron, it was inappropriate, unethical, and potentially in breach of the Data Protection Act – which takes effect on December 1 – to require applicants to divulge their health status. Such medical questions on job applications, he said, should be limited to companies only asking whether a doctor has deemed the person healthy enough to work.

The Data Protection Act 2020 safeguards the privacy of sensitive information of individuals, which is only exempt under specific circumstances.

“It is in breach of the Data Protection Act where the job doesn’t require any specific health qualifications. To ascertain what specific medical conditions one has, which the Data Protection Act recognises as sensitive personal data, you must have a lawful basis for requesting that information,” Cameron explained to The Sunday Gleaner.

“So if it is that these persons are denied the job by companies having asked that question, they can now go to the information commissioner or a private practitioner and make a complaint,” he said, noting that the Data Protection Act does not require complainants to secure hefty lawyer fees.

It does not apply to all cases, however, he explained, noting that there are some jobs where the declaration of one’s medical status from the start may be justifiable, but wide-scale probes are unconstitutional.

Using the example of a pilot, Cameron said, “They need to know whether or not you have 20/20 vision or a sleeping disorder. But the employers need to state what particular medical conditions they are concerned with, and thus should ask specific questions in relation to the position to be filled.”

He continued, “But you cannot just generally ask me what type of medical conditions I have. They need to ask specific questions or they may ask you to get a certificate of good health from your doctor. But to ask what type of medical conditions you have generally is none of their business,” he noted, adding that the passage of the Data Protection Act was fairly recent, and thus some employers might not have amended their policies.

‘IT SHOULD BE JUSTIFIED’

Granville Valentine, general secretary of the National Workers Union (NWU), told The Sunday Gleaner that persons seeking employment have lodged complaints about companies asking for their medical history, which, he believes, suggests discrimination.

“If a job desires a medical from an individual, it should be justified. What happens between you and your doctor is confidential, in a particular way, which is different from you filling out a form giving details about your medical conditions,” Valentine charged.

“It tells me that there is some level of prejudice. If a person doesn’t inform you of a medical condition that has nothing to do with the job, and you find that out, are you going to say they lied on the form, or would you have dug too deeply in their privacy?” he said.

He continued, “There are jobs where a medical is required based on the type of job, but a general medical question for a layman to fill out is not in the requirements, and it shows certain levels of prejudice and discrimination.”

COMMON PRACTICE

However, Vincent Morrison, president of the Union of Clerical, Administrative, and Supervisory Employees (UCASE), noted that the practice is not uncommon, as such health questions have been on job application forms for at least the last five years.

“A lot of companies have been doing this, and it does not only exist in the private sector,” Morrison posited.

“However, it all depends on the type of questions that they ask. There are jobs that require a certain stress level and the employer might want to know [about certain medical conditions]. It doesn’t necessarily mean they won’t employ you.

“It may also mean that they want to assist you. What if they find a good candidate? You wouldn’t want that person to come to the job and fall ill. You may want to put in place certain programmes that may lead to the person being assisted,” he said, emphasising that “it all depends on the question being asked on the application.”

But Cameron is of the view that even under those circumstances, it could be viewed as a form of discrimination.

“Let’s say the employer wants to hire a blind person because it makes his company look good,” Cameron rebuffed. “It means then that because you are healthy, you can’t get the job. The job then is only for someone who is physically challenged.”

BEST TO KNOW EARLY

Labour attorney Gavin Goffe is of the view that for some jobs, both the employee and employer benefit if certain medical conditions are outlined from early.

“An airline pilot can’t be colour-blind. There is no point in interviewing somebody who is colour-blind, and then you offer them the position and ask them to do a medical. That medical should only be revealing any disqualifying conditions of which you may not have been aware,” he noted.

Goffe added, however: “The law does not say much in relation to the kinds of questions that you can ask. From my recollection, the only medical condition which has any kind of legislation around it is where people are HIV-positive. Other conditions and diseases don’t enjoy the same kind of protection and prominence.”

Conceding that there is indeed room for discrimination, Goffe said this may come up with regard to employee coverage under the companies’ group insurance policies.

corey.robinson@gleanerjm.com