Any person with a disability has a right to the same employment opportunities as a person without a disability.
It is important to understand your rights and responsibilities in employment, preferably before you start looking for a job. This can help you to:
- decide whether to disclose your disability or not
- discuss workplace changes with an employer
- address any lack of awareness about disability in the workplace
- address any possible discrimination.
It is against Federal and State law to discriminate against someone on the basis of their disability. Both the Federal Disability Discrimination Act (DDA) (1992) and the NSW Anti Discrimination Act (ADA) (1977) aim to protect people with disabilities from discriminatory treatment in a range of areas. These include employment, education and access to services, facilities and public areas.
What Is 'Disability' Under the Legislation?
The definition of 'Disability' under the Federal Disability Discrimination Act (DDA) is very broad and includes physical, sensory, mental and intellectual disability.
'Disability' means:
- loss of all or part of your bodily or mental functions or
- loss of a part or all of your body or
- the presence in your body of organisms causing disease or illness (Hepatitis C, HIV etc) or
- the malfunction, or disfigurement of a part of your body or
- a disorder that results in you learning differently from a person without the disorder or
- a disorder, illness or disease that affects your thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour
and includes a disability that:
- exists now
- existed before but no longer exists
- may exist in the future or
- is imputed to a person (i.e. they think you have a disability)1.
The NSW Anti-Discrimination Act (ADA) uses different terminology but it does include the full range of disabilities (whether physical, mental, intellectual, learning, disfigurement or an organism that could cause disease or illness).
What is 'Discrimination' Under the Legislation?
Both the DDA and ADA cover discrimination and harassment related to disability. Both Acts outline 'discrimination' as being treated less favourably on the basis of your disability.
Discrimination includes direct forms of discrimination and indirect discrimination:
Direct Discrimination is where a person with a disability is treated in an unfair way compared to a person without a disability in similar circumstances. Example:
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This is a form of direct discrimination. The employer dismissed Mr Stevens on the basis of his disability even though he was able to meet the requirements of the job, given that driving was not required for all positions and his epilepsy had not resulted in more than two seizures in ten years.
Indirect Discrimination is where a policy, practice or requirement is applied equally to all people but has a discriminatory outcome for those with a disability.
Often policies, practices and/or requirements are put in place by employers without thinking about the impact they may have on people with a disability. It is often possible to change a policy, practice or requirement in a way that still meets the needs of an employer but which is not discriminatory. Example:
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This case demonstrates indirect discrimination as the 'no chair' policy of the workplace negatively impacted on Sarah's ability to meet the requirement of the job. The need to stand up to do the job was not seen to be an inherent requirement of the job and the employer did not look at other ways (reasonable adjustments) for Sarah to meet the requirements of the job.
Harassment
The DDA and ADA also make harassment on the basis of disability illegal. This applies to employers, supervisors, and co-workers. An employer may
be liable for the actions of employees where the employer failed to take reasonable action to prevent or respond to the harassment.
Harassment may include:
- physical harassment
- verbal abuse, whether face to face or written, including notes, e-mail or graffiti
- threats
- humiliating comments or behaviour
- deliberate exclusion from work related activities
- actions that could cause humiliation, offence, intimidation or distress
- intrusive personal inquiries in relation to a person's disability.
What Work Related Areas are Covered by the Legislation
The DDA and ADA apply to employees, contract staff, commission agents, agency workers and partnerships of three or more people. It applies to all employment processes including:
- recruitment, (advertising, information about jobs, application forms, interview arrangements, selection tests or examinations etc.)
- staff selection
- conditions of employment (salary, duties, leave entitlements, superannuation etc.)
- opportunities for training and promotion
- dismissal
- trade or professional registration
- membership of unions or professional associations
It is not disability discrimination where:
- it relates to work in a person's home
- a person cannot meet the inherent requirements of the work as a result of their disability (see "Inherent requirements" below)
- the person needs work changes because of their disability which would be too difficult or expensive for the employer to provide (see "Unjustifiable Hardship" below)
What Are 'Reasonable Adjustments' or 'Work Related Adjustments' to the Job?
Both Acts require employers to put in place actions to provide opportunities for people with disabilities to access employment and meet the requirements of the job, commonly called "reasonable adjustments" or "work related adjustments". The legislation does not specify the types of adjustments required to prevent discrimination, as each case is different and is required to be considered on an individual basis.
Types of work related adjustments might include:
- changes to recruitment and selection procedures (e.g. making the interview questions available in different formats - plain English, electronic, large print)
- changes to work premises (e.g. ensuring that work areas and facilities are accessible to a worker in a wheelchair)
- changes to job design, work schedules or other work practices (e.g. flexibility with leave arrangements to enable a worker to attend occasional medical appointments)
- changes to equipment (e.g. installing visual fire alarms for Deaf workers)
- providing training or other help (e.g. extending training time for workers with a learning disability)
- changing communication systems or information provided (eg having information available in written form and not just spoken at meetings)
- flexibility around hours of work (eg starting and finishing work later to enable a worker to work at their optimal time to suit medication routines).
Under the DDA and ADA, employers are legally required to provide reasonable adjustments for an employee with a disability provided it does not create undue hardship. The following case is one example:
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Few employees with a disability require work related adjustments. Most workplace adjustments or changes to jobs are simple, cost nothing or are inexpensive, and often benefit all employees.
FACTS:
A US Study found 80% of modifications to the workplace to accommodate employees with a disability cost less than $500 (Du Pont Corporation (USA), "Equal to the Task", 1990(2).
In a survey of over 800 personnel managers in the UK by the Chartered Institute of Personnel Development (CIPD, 2003), it was shown that:
- 80% of employers found it easy to adapt their procedures and workplaces to comply with Britain's Disability Discrimination Act.
- Of the 67% of employers who made interview locations accessible to people with a disability, 80% found it easy or very easy.
- Of the 69% of employers who made toilets accessible to people with disabilities, 76% found it easy or very easy.
- Of the 60% of employers who changed questions asked in interviews, 81% found it easy or very easy3
If you require equipment or adjustments to be made to the workplace that may be a cost to an employer, funding may be available. Refer to the 'Government Funded Employment Services' to access information about Government funded schemes such as the Workplace Modifications Scheme and Technology Assistance Schemes.
What are Inherent Requirements of a Job?
Inherent requirements of a job are those tasks or skills that cannot be allocated elsewhere, are a major part of the job or have significant consequences if they are not performed. Inherent requirements of a job may not be stay the same as a job can change over time. Example:
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Under the DDA and ADA, employers are legally required to assess the inherent requirements of the job for an employee with a disability to determine whether they could meet the requirements of the job when providing reasonable adjustments. Example:
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What Is Unjustifiable Hardship?
Unjustifiable hardship occurs when reasonable adjustments cannot be implemented by an employer for a person with a disability as it would place hardship on the employer which would be unreasonable.
Unjustifiable hardship depends on the circumstances, including:
- what change a person with a disability is seeking
- what detriment would be caused by making the change
- the costs of making the change
- the financial situation of the employer (for example, requiring a small employer to install a lift at a cost of $50,000 may be unjustifiable while requiring this of a large employer may not).
Your employer is responsible for thoroughly assessing your request for work related adjustments before claiming 'unjustifiable hardship'. This includes assessing:
- direct costs
- any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to your employment
- indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise
- any increase or decrease in sales, revenue or effectiveness of customer service
- what the additional cost is above the normal cost of equipment or facilities for employees without a disability
- to what extent an adjustment is required in any case by other applicable laws, standards or agreements
- your relevant skills, abilities, training and experience4.
What if Disability Discrimination Happens to you?
If you think you have been discriminated against because of your disability, there are a number of avenues for you to deal with it:
Step 1: It is important to find out what the complaint process is within the oganisation you work for or have applied to work with. Their policies should identify the person you need to speak with. You may choose to write down your issues and present them to the appropriate person. You may also choose to have a friend, family or advocate assist you to talk with the organisation about your complaint.
Step 2: If you feel that your complaint has not been handled fairly with the organisation or you are not happy with the process, you or an advocate can lodge a complaint either to the NSW Anti Discrimination Board (ADB) or the Human Rights and Equal Opportunity Commission (HREOC).
A complaint needs to have occurred within 12 months to be accepted by the ADB or HREOC. A complaint made to HREOC or ADB more than 12 months after the events occurred, may be terminated because of its age unless you can provide reasons why you have delayed lodging the complaint. You cannot lodge a complaint with HREOC if you have already lodged a complaint with the ADB.
There is no cost to make a complaint. Your complaint needs to be lodged, either in handwritten, electronic, Braille or audio formats. You can contact the ADB, HREOC or an advocacy organisation to assist you in writing your complaint. Both HREOC and the ADB have useful information about the complaint process on their websites:
There is no cost to make the initial complaint (prior to Step 5 below).
The Complaint Process
Step 1: A complaint is lodged by you with either the ADB or HREOC
Step 2: Staff assess your complaint to make sure it comes under disability discrimination legislation and meets the time limits
Step 3: If the complaint meets the criteria, then an investigation process will occur which includes HREOC or the ADB contacting all parties involved.
Step 4: A conciliation meeting may then be held with an independent conciliator (from the Anti Discrimination Board or HREOC) and all parties to identify a solution that everyone can agree on.
Step 5: If conciliation has been unsuccessful, you can take the complaint further to the Federal Court or the Federal Magistrates Service (for HREOC complaints) or the Administrative Decisions Tribunal (for ADB complaints). Costs are involved at this stage and you should get legal advice.
The following services can assist you in providing legal advice, information or to lodge a formal complaint:
The Human Rights and Equal Opportunity Commission
The Human Rights and Equal Opportunity Commission (HREOC) administers the Commonwealth Disability Discrimination Act (1992).
Level 8, Piccadilly Tower
133 Castlereagh Street
Sydney NSW 2000
GPO Box 5218
Sydney NSW 2001
Complaints Infoline: 1300 656 419
Privacy Hotline: 1300 363 992
General enquiries and publications: 1300 369 711
TTY: 1800 620 241
Facsimile: 02 9284 9611
HREOC website
HREOC Disability Rights website
NSW Anti Discrimination Board
The NSW Anti Discrimination Board administers the NSW Anti-Discrimination Act (1977)
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Sydney Office: Level 17, 201 Elizabeth Street Sydney NSW 2000 PO Box A2122, Sydney South 1235 Telephone: 02 9268 5555 Fax: 02 9268 5500 Toll free: 1800 670 812 TTY: 02 9268 5522 |
Wollongong Office: 84 Crown Street, Wollongong NSW 2500 PO Box 67, Wollongong 2520 Telephone: 02 4224 9960 Fax: 02 4224 9961 Toll free: 1800 670 812 TTY: 02 4224 9967 |
Newcastle Office: Level 1, 414 Hunter Street, Newcastle West NSW 2302 Telephone: 02 4926 4300 Fax: 02 4926 1376 Toll free: 1800 670 812 TTY: 02 4929 148 |
NSW Anti-Discrimination Board Website
Disability Discrimination Legal Centre
Level 2, 52 Pitt Street
Redfern NSW 2016
PO Box 989
Strawberry Hills NSW 2012
Telephone: 02 9310 7722
Telephone Toll free: 1800 800 708
Fax: 02 9310 7788
TTY: 02 9310 4320
TTY Toll free: 1800 644 419
Disability Discrimination Legal Centre Email
Disability Discrimination Legal Centre Website
General Information
Information about Occupational Health and Safety and Disability Legislation
- Choosing Your Path. Disclosure: It's a Personal Decision: Occupational Health and safety
- JobAccess website: Occupational Health and Safety
Information about Federal and State Privacy Acts
- Choosing Your Path. Disclosure: It's a Personal Decision: Privacy and Confidentiality Acts
- JobAccess website: Disclosure and Privacy
Further Information about Reasonable Adjustments
- Director of Equal Opportunity in Public Employment: Flexible Work Practices
- JobAccess website: Reasonable Adjustments
Further Information about Workplace Modifications
- JobAccess website: Workplace Modifications Scheme
- Director of Equal Opportunity in Public Employment: Workplace Adjustments for People with a Disability
Information about Workers Compensation
Footnotes:
- Disability Discrimination Act 1992
- JobAble (2004), The Benefits of Employing a Person with a Disability
- JobAble (2004), The Benefits of Employing a Person with a Disability
- Human Rights and Equal Opportunity Commission (2003) Disability Rights, Frequently Asked Questions- What Does Unjustifiable Hardship Mean ?
