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Graeme Axford & CYF New Zealand

Discrimination against the Disabled in New Zealand government Agencies continues.

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One Year On …

4 December 2009
Dear Graeme
The Collection of EEC related data in the public sector

As I undertook to do, I have now reviewed your recent emails.

Firstly, the Commission recognizes the important issues you have raised. Your concerns and the information you have provided help maintain the Commission's awareness of the way in which EEC and human rights issues are experienced, particularly for people with disabilities. Your views - along with other people's experience of fairness in employment and their suggestions for change - have been noted for the current Commission project, The National Conversation About Work.

The focus of your initial complaint was the question relating to health an the Child Youth and Family ("CYF") employment application form and reflected in the State Services Commission guidelines. That is, Do you have, or have you ever had, a medical condition caused by an injury, illness, disability or gradual process that the casks of the position may aggravate or contribute to, or that may affect your ability to carry out the work of the position applied for? As you know, Sue O'Shea raised this matter with CYF and the SSC alerting them to the potential for these to be considered discriminatory on the grounds of disability.

The response from CYF was to advise that this wording was common in the state sector and so SSC undertook to investigate this. On finding that indeed the question was common practice the SSC sent out advice to Human Resource managers throughout the public sector regarding the collection of disability data and the potential for discrimination.

On advice from you -about the continued use of the question in application forms, the Commission sent a further letter to CYF advising them that concerns remained about the potential for this question to be discriminatory. This letter was copied to the State Services Commission and to the Chief Executive of the Ministry of Social Development.

The Commission intends to continue its dialogue with CYF and SSC, promoting wording which reflects best EEC practice and precluding potential unlawful discrimination, irrespective of your complaint. Its mandate to do so comes from section 5 of the Human Rights Act which empowers it encourage and promote activities in the field of human rights and provide guidance on compliance with the unlawful discrimination provisions of the Act.

We realize that this advocacy approach has not to date hand may not resolve the matter for you. We also recognize your wish to progress the matter within the legal framework of the unlawful discrimination provisions of the Act and that you have approached the office of the Director of Human Rights in this regard. I have given thought to whether the statutory dispute resolution process of mediation would advance the issue beyond the action already taken within the advocacy role. My decision is that it would not advance the matter further and that to enable you exercise your right to take it to the Human Rights Review Tribunal, the complaint will be closed. As you know can approach the Tribunal directly or by seeking representation from the Director of Human Rights Proceedings.

I recognize your disappointment that the complaint has not been resolved as you would wish. However, as stated we will continue dialogue with CYF and SSC recognizing this is an important matter and one likely to be of concern to a number of people, particular those with disabilities. While we are closing your complaint, if in fact our advocacy approach creates a change, we will of course let you know.

Thank you for bringing this matter to our attention.

Yours sincerely
Chief Mediator (name withheld)

 

- - Original Message - -
From: Graeme Axford [mailto:graemea@minidata.co.nz]
Sent: Tuesday, 24 November 2009 12:42 p.m.
To: 'infoline@hrc.co.nz'; 'nzmissionny@earthlink.net'; 'enable@un.org'
Cc: 'ceceliao@hrc.co.nz'; 'SueO@hrc.co.nz'; 'ohrp@ohrp.org.nz'; 'gilbertw@hrc.co.nz'; 'katr@hrc.co.nz'; 'feedback@hrc.co.nz'; 20-20@tvnz.co.nz; closeup@tvnz.co.nz; 'admin@eeotrust.org.nz'; 'lynne.pillaymp@xtra.co.nz'; 'j.key@ministers.govt.nz'
Subject: potentially discriminating question, and the NZ Human Rights Commission, take no action

Hi all, at the Human Rights Commission (HRC) and Enable at the United Nations.

I made a complaint to the New Zealand Human Rights Commission and they agreed there was an “potentially discriminating question” on an application form which you can read all about this on my webpage http://graemea.snap.net.nz/eeo_rights/eeo-rights-content.html

I have taken the unusual steps of contacting everyone I can; media, web people and other staff who email addresses are listed as working for the HRC as I seem unable to see any closure to the outstanding forever on going issues I have been talking about with the HRC NZ office, which you can read about below.

Realizing Christmas is again fast approaching and the issues of the potentially discriminating application form question are still in use it appears nothing has been resolved over this time. That tells me that either HRC is unable or unwilling to do so, or I would like to know which one it is please. I think the department evolved has been given more then enough time to rectify the problem and should simply remove the offending potentially discriminating question from all the application forms rather then play around with it and buy themselves more time at people with disability expense.

I am going to publish this letter on my webpage as an update to show the world the lengths I have gone to in order to trying and get this sorted and how little has been changed or resolved as result of my efforts. Given the New Zealand Human Rights Commission are meant to look after the interests of people with disabilities (among other things) I hope you find this embarrassing for you organization, that's assuming you even care …

There has in my view been a lot of writing, talking and now its time for action to ensure the discriminating question are removed for once and for all and that nothing else like it is put in its place, as seems to be happening given the HRC last update on the 1 October 2009 11, I believe? , Since I replied and asked further questions, it's all gone strangely silent.

While I am sure my latest approach will not endear me to the NZ HRC, I think given the months if not years that have passed I have been more then patient while waiting for the potentially discriminating question and related Equal Employment Opportunities issues to be clarified.

Enable (UN), it seems the New Zealand; Human Rights Comission is allowing people with disabilities or illnesses to be confined to the scrapheap and unable to help make the “paradigm shift” towards “all persons with all types of disabilities must enjoy all human rights and fundamental freedoms on an equal basis with others. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights, where their rights have been violated, and where protection of rights must be reinforced”   (http://www.un.org/disabilities/default.asp?id=33)

Enable (UN), if the NZ HRC, is unable to achieve this and Government departments blatantly use screening questions on application forms, what hope or help do people with disabilities have if they want to contribute to society. The ironic thing is the new National led government under John Key wants people with disabilities or illnesses off the, disability & Invalid's benefits into some kind of work, I believe... Yet the issues I have raised shows the Governments own departments hinders this group themselves when in fact they should be setting the example. I will copy this to Mr Key as it seems I can not rely on the HRC do bring this problem to his attention, let alone do anything about it based on my experiences so far

Graeme Axford
Home (03) (withheld from publication)
Mobile 027 (withheld from publication)

Webpage http://graemea.snap.net.nz/
Owing to my disability and need for reasonable accommodation as a result, could you please email replies in highlight-table text form.

 

- - Original Message - -
From: Graeme Axford [mailto:graemea@minidata.co.nz]
Sent: Monday, 9 November 2009 1:55 p.m.
To: 'SueO@hrc.co.nz'
Cc: 'infoline@hrc.co.nz'; 'gilbertw@hrc.co.nz'
Subject: FW: potentially discriminating question, HRC & SSC agree, no change at CYF

Dear Human Rights Commission

I do not seem to be any closer to a resolution in regards to the Child Youth and Family, (CYF) application form and Equal Employment Opportunities (EEO) issues. While it might not seem that bigger problem to the Human Rights Commission it is a big problem for those who have applied for positions and not been short-listed as a result of having had to answer that question still currently in use, to spite what you might have been told by the Ministry of Social Development (MSD) who run CYF.

In the last response it was stated:

We note that application forms for positions at CYF have been changed and now read:

It is important to let us know of any health issues or disability that you have as they may affect aspects of the position you are applying for. If you require special services or facilities, and it is reasonable for the Ministry to provide these, then we will work to accommodate you. Letting us know that you have a medical condition or disability will not exclude you from being considered for the position.

I have as yet to find this on any of the current downloadable application forms from here http://www.cyf.govt.nz/932.htm, while they continue to advertise for Vacancies. Sorry to say I don't think the MSD is being very truthful if that is what they told you and the opposite of the evidence you can check for yourself online from their own webpage.

What I also noted which is even more alarming is the fact the private sector often copy the examples set by government agencies thinking it would be right rather then try and go through all the complexities and reinventing the wheel. Some private sector agencies download, tweak then use the forms as a template so the practice of using the "potentially discriminating question" is far wider spread the first realized.

Given the fact the MSD run the Office for Disability (ODI) Issues, http://www.odi.govt.nz/, who promote and monitor implementation of the New Zealand Disability Strategy it's ironic this problem seem irresolvable. It become clear to me as the saying goes, "talk is cheap" the MSD might be saying they are trying to fix the problem, and in the meantime it's allowed to continue.

So it seem to me the MSD who run CYF have no intention of changing the "potentially discriminating question" and if they do will replace it with something just as “potentially discriminating “ as that seem to be their clear intention.

As my webpage is about to be updated I had hoped to report some progress but instead it seem the Human Rights Commissions is either unable or willing to get the MSD to change its ways nearly a year on. That is what I will report, sorry to say because in reality that is how things have turned out. People with disabilities or illnesses are no better off since I first raised the issues which have not changed and are still very much "discriminating" against them as its not an EEO question, but a screening question as has become more obvious, given the fact the MSD have not willingly removed it long ago and what to replace it with something else reworded, to force a discloser upon application, to make it easier to knock people back who disclose a disability or illness at that point. What's even worse is there is no protection whatsoever for people who disclose a disability or illness at any point of the process, even within the current EEO policies.

If the mention of a disability or illness precludes someone at any point, that’s not recorded anywhere and only upon appointment are EEO questions asked it seems. My webpage http://graemea.snap.net.nz explains the issues with this in more detail.

I fail to see how the Human Rights Commission can find this acceptable in any way given you are meant to be in favor of a more inclusive society,

What's more given the National led Government wants to move Sickness and Invalid's, Beneficiary's http://www.scoop.co.nz/stories/PA0910/S00315.htm into the workforce and given the requirements to qualify for these benefits this group are more then likely to have a ongoing disability or illness that could effect them and their ability to get a job.

Do you not realize how demoralizing it will be to look for work you will never get because to spite the skills you do have and even the experience, and qualification someone without a disability or illness can trump you every time. Maybe people on the Sickness and Invalid's, Benefits do what to work but have given up in dismay lingering at substance levels knowing they are banging their heads against a brick wall trying under this current system.

What's more ironic is the fact Work and Income who administer the benefits are run by the MSD who run CYF and the ODI, as previously mentioned, so talk about hypocrisy, they want people on the Sickness and Invalid benefits out to work but themselves keep on using "potentially discriminating question" that can exclude this group from getting employed by them.

Cheers
Graeme Axford

 

- - Original Message - -
From: Graeme Axford [mailto:graemea@minidata.co.nz]
Sent: Wednesday, 28 October 2009 1:50 p.m.
To: 'SueO@hrc.co.nz'; 't.turia@ministers.govt.nz'; 'paula.bennett@xtra.co.nz' Cc: 'infoline@hrc.co.nz'; 'commission@ssc.govt.nz';'sharon.pugh@pariment.govt.nz'
Subject: potentially discriminating question, HRC & SSC agree, no change at CYF

Dear Human Rights & State Services Commission and Minister's

As you all would be well aware I have now for a very long time since 14 November 2008 been complaining to you all directly about Child Youth and Family (CYF) and what I see and you agreed could be a "potentially discriminating question" on their application form.

I would also like to point out I have been questioning CYF Equal Employment Opportunity (EEO) policy since October 2006, which you can read about here ../employment/p11_cyfeeo.html some within CYF tried to say the application form questions was for EEO purposes

So given that confusion I can't go back that far in regards to specifically saying the application form question was the predominant issue but it was a mitigating factor in regards to the overall EEO policy interpretation. In fact what it did prove is how confusing the SSC guidelines are to understand and everyone when running for cover when I showed it up.

Example

Graeme's Disability:
Graeme's dyslexia was raised. Paula explained that it was unhelpful for the panel not knowing that he had a disability at the time of the interview and questioned why it had not been identified on the CYF Application Form.

Asked at a meeting Thursday, 12th October 2006, 11.00 am Paula Attrill and Shona Hickey

Then I went back to the State Services Commission Terisa Watters, Monday, 18 December 2006 12:11 p.m. ../employment/p12_ssc_eeo.htm   In which she suggested I contact the Chief Executive, which I did an got no response at all, even to this day. WHAT A SURPRISE!

They now advise HR staff to separate EEO statistical information (including that about disability) collected at pre-selection from other candidate application materials prior to interview. While that would not address your concern relating to the question CYF asked about other matters that might affect your ability to do the job, it goes some way to address your concerns… 29 May 2007, from Ann Aspey Solicitor for State Services Commission, I believe?

What surprised me is given the problem was so obvious none of the governments so called experts ever picked up on it before until I pointed it out and only then was it corrected.

In-between all this I tried to get a hold of the State Sector Equal Employment Opportunities practitioners network myself, only to be told it was not open to the public. I believe they are the group of people from a cross section of government agencies who give advice to the SSC on EEO stuff that then becomes policy guidelines for the SSC to advise all government agencies once its been agreed upon what is best practice.

While I am repeating myself I need to be clear some at CYF and possibly, also the SSC tried to tell me the questions on the application form was for Equal Employment Opportunity reasons which we know is not correct, and justified it by saying it was so the interview panels could be aware of any issues in advanced etc…

In the mean time I was told by Solicitor, Ann Aspey that if people did not answer that question on the application form as it was written then and now, that could be grounds for instant dismissal. So I wanted that question gone as it put people with a disability or illness at a disadvantage upon application, if they were required to reveal something as I believed it was a screening question. Which goes against the very EEO ethos they claim to follow LOL.

On 19 February 2009, a memo was released On Behalf of BROWN, Peter, Subject:

Collection of Disability Data on Employment Application Forms
The Human Rights Commission has alerted the State Services Commission (SSC) that some Public Service departments are asking potentially discriminatory health and disability questions in application for employment forms.

And so on you can read the letter in full here, http://graemea.snap.net.nz/eeo_rights/eeo_hr_questions.html

So here we are Wednesday 28 October 2009, no better off then when we started as the problem with the application form still exists to spite all my efforts. It seem neither the Human Rights or State services Commission can get the Ministry of Social Development who run CYF to remove that potentially discriminating question, if they don't want to while this get sorted.

It seems while they claim to be trying to resolve the issues (if they really are or just trying to buy more time) the question is allowed to remain. The simple answer as I have stated before is to first remove the question totally as it has no place or excuse for being on an application form. Then after short listing and when someone is invited to the interview ask it then so the panel can be prepared. That's a simple win-win and ensures the disability or illness questions can not disadvantaged people upon application, and that the interview panel would still be made aware of any issues for preparation. However even then monitoring would need to be done to ensure the person was not discriminated against after making issues known to the panel.

Now SSS & HRC, I think I have been more then patient we are now coming up to Christmas and given the long break you all take if something does not happen in the next few months, it will continue next year and more then likely many more after that and so on …

I am not about to let that happen and feel a protest coming on, very soon if things do not change I will be watching the http://www.cyf.govt.nz/932.htm Vacancies page to see if this happens.

Cheers
Graeme Axford
Owing to a disability and need for reasonable accommodation please email you response in highlight-able form.

 

- - Original Message - -
From: Graeme Axford [mailto:graemea@minidata.co.nz]
Sent: Friday, 16 October 2009 9:37 a.m.
To: 'SueO@hrc.co.nz'
Subject: RE: potentially discriminating question, HRC & SSC agree, no change at CYF

Hi Sue

I just download the first CYF application form 0_Application_Form_A_September_2009 in which it reads:

Do you have, or have you ever had, a medical condition caused by an injury, illness, disability or gradual process that the tasks of the position may aggravate or contribute to, or that may affect your ability to carry out the work of the position applied for? If "yes", please give brief details:

The statement you quoted

It is important to let us know of any health issues or disability that you have as they may affect aspects of the position you are applying for. If you require special services or facilities, and it is reasonable for the Ministry to provide these, then we will work to accommodate you. Letting us know that you have a medical condition or disability will not exclude you from being considered for the position.

O YEA RIGHT! I believe that NOT

I am a bit lost to understand where you got the idea the above statement was currently being used by the MSD now. I download the updated application forms and they appeared not to have changed the question at all to what you suggested which even then could still create issues. If you doubt this please go to their webpage http://www.cyf.govt.nz/932.htm so I am at a lost to know how you think We note that application forms for positions at CYF have been changed and now read as mentioned above!

Even if CYF and the MSD had changed the forms as you suggested it's purely semantics as the new wording still does not appear to be for Equal Employment Opportunities, and seems to be a screening question as you pointed out is potentially discriminatory, and I agree.

The merits of short-listing is it narrows the field down based on skills, experience and suitability criteria, I believe after all this has been considered and the letter advising people they have made it to the interview stage is the only appropriate time to ask that sort of question and raise issues in this kind of manner:

Could you please advise the panel if you need reasonable accommodation owing to having an illness, disability or gradual process before your interview and as soon as possible, that the tasks of the position being applied for may aggravate or contribute to? We ask this question incase research is needed for greater understanding by the panel or special equipment or consideration is required in accordance with our EEO policy.

I believe doing things the way I suggested alleviates the first instance of possible discrimination upon application as it ensures that person is selected on skill sets, and experience, suitability criteria and not excluded from the process by having to declare a disability at that stage.

While my wording is not brilliant my ideas and examples are far better then what has been touted at the moment by the MSD. The main problem is while we continue debating what's right, the wrong continues and the MSD keep on getting away with it. Can you ask the MSD to withdraw any questions similar to the ones we have talked about and seen as wrong? I don't think they should be allowed to experiment with rewording questions like that, with respect … As it mean it gives the MSD an excuse to keep on getting away with it as long as they are claiming to be trying to fix the problem even then at an extremely slow pace … It seems to me given the time that's passed and what I see as the MSD defiance and trickery that allows them time to get away with it for as long as you let them, I hope the Human Rights Commission will take a far stronger stand to make the MSD more compliant.

Look at how long it's taken to get this far and I am sure the MSD will keep on prolonging this if they can and as they have been doing.

I just can't believe that the Ministry of Social Development who also oversee the Office for Disability Issues that advises the Minister of such issues could possibly, in any way see what they are trying to do as right with the aforementioned application questions, which raises real concerns about their credibility if this goes on. I just can't believe the MSD Human Resources could miss this then fuddle around with the question in a way that still is potentially discriminatory either it's done deliberately or they are total idiots. I can be excused for making bad errors with wordings because of my disability what's there excuse? Come on lets get real..

I hope you will excuse my tenor but I am fed-up with the fact I thought progress was being made when in-fact we are just going round in circles and being led to believe things have changed when in-fact they are still the same at the MSD.

I await your response
Graeme Axford

 

- - Original Message - -
From: Sue O’Shea [mailto:SueO@hrc.co.nz]
Sent: Thursday, 1 October 2009 11:33 a.m.
To: 'Graeme Axford'
Cc: Infoline
Subject: FW: potentially discriminating question, HRC & SSC agree, no change at CYF

Dear Graeme

Thank you for bringing this matter to our attention. We note that application forms for positions at CYF have been changed and now read:

It is important to let us know of any health issues or disability that you have as they may affect aspects of the position you are applying for. If you require special services or facilities, and it is reasonable for the Ministry to provide these, then we will work to accommodate you. Letting us know that you have a medical condition or disability will not exclude you from being considered for the position.

We have concerns that the first sentence is still potentially discriminatory and have advised CYFS and SSC of our opinion.

Yours sincerely
Sue O’Shea
Principal Advisor EEO

 

- - Original Message - -
From: Graeme Axford [mailto:graemea@minidata.co.nz]
Sent: Thursday, 10 September 2009 2:40 p.m.
To: infoline@hrc.co.nz; Paula (paula.bennett@xtra.co.nz); 'rajen.prasad@parliament.govt.nz'
Cc: 't.turia@ministers.govt.nz'; closeup@tvnz.co.nz; 'odi@msd.govt.nz';'commission@ssc.govt.nz'; 'peter.hughes003@msd.govt.nz'
Subject: potentially discriminating question, HRC & SSC agree, no change at CYF

Dear Human Rights, State Services Commissions and Ministers

I have an ongoing official complaint about a discriminating questions and practices in relation to Child, Youth and Family (CYF) application forms and processes which continue to go against advice they have received from the Human Rights Commission (HRC) and State Services Commission (SSC)

The Ministry of Social Development (MSD) seem in complete defiance in my view, given they have been aware of this issue for some time and do not seem to have made any effort to correct it in the months that have since passed.

I think it is rather ironic given the MSD who run CYF also oversee The Office for Disability Issues (ODI) http://www.odi.govt.nz/about-us/index.html and the New Zealand Disability Strategy while giving advice to the minister on such issues. This could be an interesting paradox from the MSD and ODI, do as I say not as I do LOL

Sue O’Shea from the HRC stated in and email to be dated Friday, 14 November 2008 4:08 p.m. that:

The wording of the question in the CYFS application form does not appear to be data gathering for the purposes of equal employment opportunities. You report that the application form states:

Example from the CYF Application Form July 2008.
Health

Do you have, or have you ever had, a medical condition caused by an injury, illness, disability or gradual process that the tasks of the position may aggravate or contribute to, or that may affect your ability to carry out the work of the position applied for? If "yes", please give brief details:

Yes

No

Source: www.cyf.govt.nz/.../0_Application_Form_A_March_2009.doc

The HRC went on to say in that same email In my view this question is problematic as it raises the possibility of unlawful discrimination. An employer is entitled to establish whether a job applicant has the abilities needed for the job…

As a result of my complaint and the HRC inquiries this bit of advice was given.

The Human Rights Commission has alerted the SSC that some Public Service departments are asking potentially discriminatory health and disability questions in application for employment forms

From letter dated Thursday, 19 February 2009 1:07 p.m, Subject: Collection of Disability Data on Employment Application Forms, from: Peter Brown, Deputy Commissioner People Capability, http://www.graemea.snap.net.nz/eeo_rights/eeo_hr_questions.html

That question is above yet it still continues being asked on CYF application forms as I download it today to see

Now I had a lot of dialogue with the Human Rights Commission on this subject you can read about here rather then me having to repeat it all again: http://www.graemea.snap.net.nz/eeo_rights/eeo_hr_dialogue.html

So Commission or Ministers, is anyone going to ask the MSD and/or CYF to remove or reword the offending questions so that at least on paper they are being seen to do the right think, even if in practice that might be far from the case. Given their blatant defiance illustrated by the fact I am again having to write to you all to point out the problem still exists, is there anything that can be done to make the CEO of the MSD comply.

So Commission and Ministers am I to assume as the MSD has not followed the advise of the SSC and HRC, and if they continually refuse to do anything about changing or amending that question on their application form, no one cam make them?, its entirely up to the CEO Peter Hughes, to go along with this advice or not? The Commissions and Minister should be very concerned because if CYF can keep on getting way with openly flouting good advice then I doubt CYF have lifted their game in the way they view and treat people with disabilities, and they should be ashamed of that and you all calling them to task in my view.

I just can't believe that the CEO of the MSD can ignore the SSC and HRC and get away with it or that the Ministers at the least can not instruct Mr Peter Hughes to address the issues in some to try and resolve them.

Cheers
Graeme Axford
Owing to my disability and need for reasonable accommodation as a result, could you please email replies in highlight-table text form.

 

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