The information arms race

By skepticlawyer

Like most Oxford graduate students, I subscribe to the UK’s ‘Milkround’ newsletter, which among other things is designed to give graduates useful employment tips and ‘inside’ information. Most of the time it’s anodyne but useful: I’ve secured some consulting work through it, as well as some legal work. Every now and again, however, something within catches my eye when it engages with a larger issue. Like this:

The Recruitment and Employment Confederation (REC) claims candidates handed jobs who fail to disclose specific information such as health matters or their previous career history may find it proves costly in the long term 

Following a High Court case which saw the former general manage of Cheltenham Borough Council sued for nearly £1 million after it was alleged she failed to disclose suffering from depression on her CV, the REC’s Director of Professional Services Fiona Coombe has warned of the career hazards lying on your most important jobseeking tool. 

She said: “Research has shown that many people bend the truth on their CV to enhance their chances of getting a job. It may however amount to a breach of contract or fraudulent misrepresentation and could be a criminal offence depending on the nature and extent of the lie. 

“Of course, recruitment agencies are required to check experience, skills and qualifications. But it is down to the candidate to decide whether they want to reveal other information, such as their medical history. In the end, it is not sensible to lie because failing to disclose such details can come back to haunt you.” 

Now finessing one’s CV is a bad idea, that I grant. Telling people you can program in C++, or speak Hindustani, when you can’t (and especially when it’s needed for the job), is going to land you in all sorts of crap down the line, and deservedly so. Somehow, though, I don’t think trying to force potential employees to detail their medical history is a good idea.

I know where it comes from. Employment markets operate a little bit like used car markets, except the information asymmetry runs both ways. With the best will in the world, it’s often difficult to find out whether a particular workplace is a good ‘un or not (I remember being told to ‘research the firm’ when applying for legal jobs. This is close to being a pointless exercise, when every major firm has an identically shiny and anodyne website). Similarly, it’s hard for employers to vet staff thoroughly. This latter problem is exacerbated by a legal climate where it’s hard to sack people. If you know you’re likely to be stuck with someone regardless of their performance, it becomes very tempting to make them jump through ever more complicated hoops in order to work out if they’re any good or not before they start working for you. Getting them to divulge their medical history is one such hoop.

There’s something to be said for the contract at will, as Richard Epstein argued some years ago. Before I changed careers, I taught for a while in an adult education centre. One of my higher-ups hated me with a passion — her office was decorated with anti-me cartoons, and she would ostentatiously read Robert Manne’s attack on me every time I needed to see her about something (she’d pick the book up, showing the cover, then flick through the pages. It was permanently on her desk. One day I realised that she wasn’t actually reading it — just flicking backwards through the pages, and I started laughing. This was probably a bad idea). I put up with it for most of a semester, and then decided — quietly and without any fuss — to pull the pin.

Except I couldn’t.

The whole system (government, unsurprisingly) was set up so that it was pretty much impossible to sack people, and very hard for employees to leave suddenly without the employer having to cough a considerable sum of money. I didn’t want any of their money, I just wanted to leave. Yesterday, if not sooner. Union friends advised me to do something about her — complain, get her disciplined, even subject her to a ‘performance review’. My response was along these lines: ‘look, I know when I’m not wanted, and I don’t think it’s wise to try to force people to like someone they don’t like. Smart employers know this, which is why the private school down the road has offered me a job, and you guys are going to be short a good teacher. Now give me my severance notice and let me go’.

Tim Harford and Gary Becker have both pointed out that markets often undermine discrimination for the simple reason that smart firms hire the talented people that other, more prejudiced firms don’t like (for pointless and irrelevant reasons, like skin colour or political orientation). Barry Goldwater’s family firm was among the first in the South to desegregate and hire blacks and whites on equal terms, and did very well as a result. Yet Goldwater opposed the 1964 Civil Rights Act: he thought it was ‘legislating morality’ and trying to force people to like other people against their will. Of course, you could say (somewhat cynically) maybe he wanted to keep all the talented blacks in the area to himself.

Hobbled by the law, employers are now trying to discriminate via the back door. They figure if they can make a contract of employment resemble a contract of insurance (the latter are concluded uberrimae fidei, in ‘utmost good faith’), and so remove the element of risk in hiring someone new (a version of caveat emptor, ‘let the buyer beware’), everything will be peachy. Except it won’t, as this piece rather shrewdly points out:

Cheltenham Borough Council is suing its former Managing Director for nearly £1 million, claiming that she hid a history of depressive illness and the fact that she was on anti-depressants when she applied for and secured her job.

christine-laird3Part of their argument is that Christine Laird, in a pre-employment questionnaire, answered ‘no’ to a question about whether she considered herself disabled.

Two-and-a-half years after securing the post Ms Laird went off sick, and eventually left.

When I was in New York I bought a T-Shirt that says “I lied to get the job. They lied about the job. We’re even”. I wear it at work sometimes to annoy the boss. The idea that you can be sued – not just fired, but sued – for something you say in a job application will scare the crap out of everyone who’s ever put the best possible gloss on, say, the amount of experience that they have.

The most interesting thing, though, is that the Council is essentially arguing that people with a history of depression are “disabled”. They may come to regret this argument.

If they win this case, and if the recession means that there is no work in Ireland, then the Tinfamily and I are off to Cheltenham. I’m going to drive to the Borough Council Offices, park the Tincar in a disabled parking spot, slap my packet of Cipramil on the reception desk, and demand disability allowances. (I’m also going to demand a council house, which I will let to Irish punters during Gold Cup week, using the rent that they pay me to fly to Tenerife to see if sunshine affords me any relief).

The UK Government website list a whole load of payments and Tax Credits that I might qualify for. And not just me. Six million people in the UK have a history of depression.

Cheltenham BC can recognise that depression sufferers are ill. In fact, I welcome it. But during this illness we’re expected to raise our kids, drive our cars, pay our taxes, do our jobs. And we do.

Are they sure they want to call us all disabled?

Many people with mental illness are gainfully employed. They’re gainfully employed in large part because they’ve been able to ‘win’ the information arms race, playing a version of ‘don’t ask, don’t tell’. Employers can’t see their disability unless and until it begins to affect their work. Black people who looked white achieved the same effect historically by ‘passing’. This sentiment is captured rather neatly in the T-shirt that says ‘I lied to get the job. They lied about the job. We’re even’.

Instead of just giving Ms Laird the sack (the virtue of the contract at will), Cheltenham Borough Council (and others like it) — all doubtless hamstrung by employment laws that make it hard to sack people when they’re clearly skiving off for whatever reason — would like to make it extra difficult for all people with mental illness to get work. The many are made to pay for the sins of the few. I don’t doubt for a moment that owning up to depression on your CV is the fastest way to the dole queue — and, in a modern welfare state, the far more expensive (for the taxpayer) disability pension — perhaps even ahead of a criminal record.

Turning employment contracts into contracts uberrimai fidei won’t just penalize people with hidden disabilities. Think of all the people (I know several) who route around discrimination by putting ‘Michael Ahmed’ instead of ‘Muhammad Ahmed’ on their CV. Or people who leave off details. For many years, I applied for jobs using my partner’s surname and left off the fact that I’d won the Miles Franklin Award (the latter practice went into sharp reverse over here, as the British find it impressive). Steven Levitt has done a mountain of research showing that ‘poor black’ (Imani, DeShawn) and ‘white trash’ (Cody, Kayla) first names will get a CV binned as fast as owning up to a felony conviction. If people want to route round this kind of silliness, more power to them I say.

It would be nice to live in a perfect world, a world without discrimination of any kind, but that isn’t going to happen any time soon. It would also be nice to live in a world of true accountability and genuine disclosure. Unfortunately, not only are both impossible (the fact that insurance contracts are contracts uberrimai fidei doesn’t stop people rorting them continually, which is why health insurance premiums are so high), they’re also incompatible. It will only be possible to have full disclosure (a) in the absence of discrimination and (b) in the absence of privacy protection laws. There comes a point when people of whatever sort — from employers to the media — simply do not have a right to know. This is slowly being recognised, admittedly over the howls of journalists and government spooks (strange to see them on the same side). When Mark Latham decked a journalist for photographing his kids without parental permission, I thought he was largely in the right.

The fact is, we live in a world of risk. In its most extreme form, living without risk would mean (a) living alone and (b) never leaving the house. This use of litigation in a perverse attempt to avoid risk (‘oh noes, we may accidentally hire a dud’) is both pathetic and expensive. And the people of Cheltenham paid for that litigation with their Council Tax. 

For more information on a very clever campaign designed to point out just how common mental illness actually is, and yet how many mentally ill people get through regardless (including holding down full-time jobs), go here. Among other things, it also shows how disclosure may be possible without turning to the law.

UPDATE: Some interesting discussion here, here and here.

UPDATE II: More details on the contract at will here, via the Oxford Libertarian Society.

One of the campaign’s publicity stunts:

30 Comments

  1. Posted February 1, 2009 at 3:46 am | Permalink

    prozacs

  2. Posted February 1, 2009 at 9:30 am | Permalink

    I do mention my asthma on my CV, as ‘mild asthma’. If they ask about medication I add ‘successfully controlled by preventer medication’. It never seems to have been an issue. But this has all recently been brought home to me because someone in my extended family is HIV+ve, and I am realising what a minefield this disclosure issue is for people in his situation – he is in the UK, employed by a small private company, and frequently has to travel to a country in the Middle East for work. If I read the situation correctly, his employer doesn’t want to know about his status officially, because he then might be prevented from working in the Middle Eastern country concerned, which has quite strict regulation around this. So it’s undeclared, and that means they can’t make any allowances for it (eg time off for checkups etc).

    So, I found your discussion very thought-provoking.

  3. Posted February 1, 2009 at 1:28 pm | Permalink

    Ah yes the Public Service. Working with people who think that accomplishing something is a pipe dream. I remember working there. I said at the interview: I’m the sort of person who has a very low tolerance for office politics, mind games and the like. I think it wastes time.

    Dead silence. I thought how could that possibly be wrong.

    Oh what an ignorant fool I was.

    Trouble is any large organization has the same problems. The need for middle management and the extensive and elaborate systems by which people are employed, by which peoples’ job descriptions are designed, by which staff are organized and evaluated tends to assist those whose only ‘virtue’; is to be a malicious, manipulative sociopath.

    Dilbert – it’s not just a cartoon. It’s a work of political philosophy. 🙂

  4. Jacques Chester
    Posted February 1, 2009 at 2:18 pm | Permalink

    Weird, I never thought of depression as a disability before. I take my meds each morning and that’s all I need to do to keep on keeping on.

    But I don’t think I’ve ever disclosed it in a job application. I’ve never realised that it would be a criteria. It’s a bit silly, considering how many people are depressed and don’t realise it.

  5. Jacques Chester
    Posted February 1, 2009 at 2:19 pm | Permalink

    It makes about as much sense as discriminating against asthma, diabetes or hemorrhoids, is what I’m trying to say.

  6. Posted February 1, 2009 at 4:08 pm | Permalink

    [email protected]: On “Dilbert”: Catbert isn’t a “political philosophy” but an illustrative of the exemplar HR manager (according to many corporates).

    In general:
    What about reciprocity of disclosure?

    If firms are worried about workplace-related stress leading to depression or exacerbation, and thus increasing costs, it’s probably because such firms are LIKELY to push people over the edge by involving ethical people in dodgy practices.

    Hmmm. Perhaps employers should have to give an open disclosure of their “history” to prospective employees….
    (1) Does the company attempt to minimize taxes more aggressively than the tax office would be happy with?
    (2) What is the incidence of people diagnosed with depression AFTER starting work with the company?
    (3) What is the actual maturity score within the company for processes the prospective employee will be involved in.
    (4) What percentage of processes within the company have had their process maturity audited? Are there any major process areas that got less than 2-and-a-half out of five.
    (5) How many times in the last 5 years has the company been taken to court? What for? How many times in the last 5 years has the company paid a settlement to stop a case?
    (5) What is the incidence of workplace accidents?
    (6) Please provide your high-level risk framework to show you understand AS4360.
    (7) What is the staff turnover rate? Including contractors who turn down offers to renew?

    I’m sure there are lots of similar questions that are relevant to potential employees that employers wouldn’t want to divulge. And of course, if they gave false or misleading answers….

  7. Lizzie
    Posted February 1, 2009 at 4:09 pm | Permalink

    This sort of ignores that most workplaces are very depressing places to be. O let me count the ways!

  8. Posted February 1, 2009 at 7:19 pm | Permalink

    I’d counter-sue for discrimination, failure to specify what was meant by “disability” and failure to adequately put procedures in place to deal with her depression etc… If it was like most workplaces I’ve worked in before, I suspect the processes would be appalling.

    And there begins the litigation arms race. Cheltenham really have opened a can of whoop-ass on themselves. Unfortunately, I think it is going to come back to making people easier to sack; what we have now loads up the front end of the process as both parties try to win the information arms race.

    Employers won’t take risks with anyone who’s a bit ‘non-standard’ thanks to it, and now also inflict the sort of mindless HR that Adrien describes on everyone who comes through their door. The ultimate expression, of course, of the need to win the information arms race is M-H’s friend with HIV.

  9. Posted February 1, 2009 at 10:45 pm | Permalink

    Unfortunately, I think it is going to come back to making people easier to sack; what we have now loads up the front end of the process as both parties try to win the information arms race.

    And it’s not like it is particularly difficult to sack people in the UK… our politicians have been boasting the (ahem) flexibility of our workforce since Maggie broke the unions back in the 80’s.

    Ah yes the Public Service. Working with people who think that accomplishing something is a pipe dream. I remember working there. I said at the interview: I’m the sort of person who has a very low tolerance for office politics, mind games and the like. I think it wastes time.

    Dead silence. I thought how could that possibly be wrong.

    At least you eventually got the work, Adrien. I did really well in the exams in Australia but went along to the first intervew and admitted that I had no intention of joining the union.

    Never got a second.

  10. pedro
    Posted February 2, 2009 at 11:50 am | Permalink

    The Qld law society has recently taken to telling us that depression is one of the things that perhaps should be disclosed when we apply to renew our practicing certificates. Presumably there has been a problem with a depressed solicitor and thus our attention is being drawn to it.

    I certainly agree that employment should be a contract at will.

  11. Posted February 2, 2009 at 12:10 pm | Permalink

    Dead silence. I thought how could that possibly be wrong.

    I worked in the public service for far too long and a principal reason I left was the incredible level of office politics and mind games. It sickened me, I tend to regard with contempt those who put so much effort into those endeavours.

    Nonetheless this is not unique to the PS. My sister runs a very successful consultancy company and told me one of her rules of thumb: in small organisations address the direct production issues, in medium size watch the politics, in large sizes pay great attention to the politics as a first priority.

    Pedro,

    I trust the Law Society had the good sense to define depression more closely. There are many types and “depression” in itself does not have to be a problem in work performance. It very much depends on the depth and severity of depression(dysthymic, major, or reactive depression). My personal view is that the Law Society should butt out of such personal matters. What matters is how the person is performing, attempting to extrapolate potential problems in the workplace arising from depression is just silly. It may also violate the Anti-Discrimination Act!

  12. Posted February 2, 2009 at 5:21 pm | Permalink

    DEM –

    At least you eventually got the work, Adrien. I did really well in the exams in Australia but went along to the first intervew and admitted that I had no intention of joining the union.

    Disgraceful!

    You must join the Union. It’s your moral duty. The first time I ever talked to a unionist I was writing a story on union busting and giving them a very good spin.

    So of course the guy told me that he would break my legs.

    The second time I talked to a unionist I wanted to know about the sexist practices standard in his union and he threatened to beat me up for ‘splitting the working class’.

    The third time I’d been unfairly dismissed and the union person said: I have to check that you’re a member and upon finding out that I was, said: So you’ve been sacked. What the hell do you want us to do about it?

    So you’ve got to join the union. Because as the Trots say: A union is a union is a union.

  13. Posted February 2, 2009 at 5:23 pm | Permalink

    Lizzie – This sort of ignores that most workplaces are very depressing places to be. O let me count the ways!

    Yes the world is secretly run by people who’ve convinced us all that the best way to create a productive team is to make everyone miserable.

    Makes sense right? 🙂

  14. Posey
    Posted February 3, 2009 at 4:51 am | Permalink

    People suffering from depression are often extraordinarily productive workers and a great stimulant, inspiration and help to their colleagues and bosses, particularly when in a manic phase.

    In one former workplace, a young Russian woman, a fairly recent migrant to Australia with multiple tertiary qualifications in mathematics, but primarily interested in sex and Dostoevsky, was employed as the single IT support worker in a community health centre.

    She had bipolar and large chunks of her working days were often spent cruising the local bars or sleeping or sobbing in an empty office. Or earbashing me. I liked her a lot, when she didn’t send me round the twist with her suicide threats and demands for attention and sympathy.

    Management, of course, ridiculed and abused her behind her back, but never disciplined her or, to my knowledge, even remonstrated with her about her unorthodox timekeeping. Why? Because she would always deliver what ever was demanded, even if it meant working an entire weekend and sleeping in the office. They got their $’s worth and more from this force of nature and the elegant software programs she designed to order were said to be things of rare beauty.

  15. Posted February 3, 2009 at 6:48 am | Permalink

    You must join the Union. It’s your moral duty. The first time I ever talked to a unionist I was writing a story on union busting and giving them a very good spin.

    So of course the guy told me that he would break my legs.

    The second time I talked to a unionist I wanted to know about the sexist practices standard in his union and he threatened to beat me up for ’splitting the working class’.

    The third time I’d been unfairly dismissed and the union person said: I have to check that you’re a member and upon finding out that I was, said: So you’ve been sacked. What the hell do you want us to do about it?

    So you’ve got to join the union. Because as the Trots say: A union is a union is a union.

    Gotta stick my oar in at this point. I don’t know what industry you were in, but a number of my friends (and my partner) work for very progressive unions. They consistently encourage people to be informed and stand up for their rights, and also work tirelessly to ensure that employers are held to their obligations. I do not believe that the unions they are involved with would ever threaten anyone, nor would they turn someone away without offering some kind of assistance. Many of these people are courageous and have battled on despite having almost all of their legal right to assist employees stripped away by Work”Choices”,

    For example, this week as you are no doubt aware we have had one day below 40 degrees so far in Adelaide. My partner’s union has been all over the employers who are forcing their employees to work with broken/no airconditioning. We are talking pregnant women being expected to work in call centres for 9 hours in 45 degree heat with no air conditioning. Many of these employees are either too timid or too ill-informed (usually by the same employers) to assert their rights – so luckily they have a good union who was able to negotiate reasonable work conditions with their employers.

    Unions are not inherently evil. They simply reflect the aggregation of labour power in the same way that a corporation represents the aggregation of capital power. Yes, there are plenty of bad, regressive unions (don’t get me started about some of the Labor-right unions), but many, most I would even say, in Australia do a huge amount of good and very little that is negative.

  16. Posted February 3, 2009 at 8:15 am | Permalink

    Unsurprisingly, we’re now getting mountains of spam for psych meds of all kinds.

    Better than pr0n, I suppose.

  17. Posted February 3, 2009 at 9:01 am | Permalink

    Blog spam is so bloody annoying. I get about 3 million new user registrations a day…

    What do you use to fight it off? Akismet?

  18. Posted February 3, 2009 at 11:37 am | Permalink

    I think contract at will is the way to go *provided* we have a decent welfare safety net. I’d hate to see people with mortgages and children sacked and forced onto the streets if they can’t find a new job soon enough, which is a real possibility especially in a recession.

    I would never have bought my first house if I didn’t have the 99% job security provided by the public service.

  19. pedro
    Posted February 3, 2009 at 12:33 pm | Permalink

    “Unions are not inherently evil.” Maybe not, but they do seem to attract some inherently evil people. Still a bigger problem is that lots of unions try to do good based on stupid policy ideas like centralised wage fixing.

    Mel, when you borrow money both you and the bank and effectively taking a bet that you will be able to pay it off. It’s generally a worthwhile bet if you’ve had a job for a while, even if in the horrible private sector.

    The welfare net is not going to keep mortgages paid unless at a silly level of welfare. I guess there’s nothing like saving for the lean times.

  20. Posted February 3, 2009 at 5:08 pm | Permalink

    Paul – Unions are not inherently evil.

    No but they aren’t inherently good either. Like any other organization which distributes power to individuals they are capable of being corrupted.

    The union that refused me assistance was the AWU (surprise).

    The union official that threatened me was from the LTU and I can’t remember the ‘I won’t let you split the working class’ guy’s particular organization.

    I wasn’t trying to besmirch all unions but there’s a certain arrogance and moral superiority that I associate with ’em most definitely. Even reasonable unionists I’ve spoken too tend to assume that my bad experiences are my fault: no self criticism.

    And I was flabbergasted to learn that that great Australian innovation so essential to a properly functioning democracy – the secret ballot – had to be forced on trade unions by John Howard!

    There’s a feeling in the left that unions are sacred. Student unions too. I remember all these people at uni who would not hear of, or even tolerate those uttering, any criticism of NUS. This is despite the FACT that it was undoubtedly one of the most corrupt and useless wastes of money I’ve ever witnessed.

    And I used to live in Cairo. 🙂

    Unions aren’t sacred. They’re organizations like others. Prone to the same decadence and flaws. And subject to the same criticisms and checks and balances (or should be).

    And one should not be obliged to join one.

  21. Jacques Chester
    Posted February 3, 2009 at 7:28 pm | Permalink

    Blog spam is so bloody annoying. I get about 3 million new user registrations a day…

    What do you use to fight it off? Akismet?

    Akismet for the spam. This site doesn’t have open registration so spambots trying to register user accounts aren’t a problem. At Troppo I block spambot account attempts using a plugin called SABRE. It’s quite effective — a lot of humans fail the maths test. 🙂

  22. Posted February 4, 2009 at 4:22 pm | Permalink

    Just installed SABRE, looks like just the ticket – thanks.

  23. Posted February 4, 2009 at 5:59 pm | Permalink

    [email protected]: “a lot of humans fail the maths test”
    Yeah, well they are the ones you want to keep out anyway.

  24. Posted February 4, 2009 at 6:21 pm | Permalink

    Here’s a headline back on topic from New Scientist….
    Is recruitment ban for home smokers discrimination?

    “They could not find any published evaluations of its effect on public health, but identify several ways in which the policy could be damaging.

    Smokers might be forced to quit their jobs rather than their habit, they say, which could leave US workers without health insurance. And by preventing smokers from finding work, the policy may also exacerbate social segregation, as smoking is more common among some ethnic minorities and low-income groups.”

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