In this Section Introduction What is 'disability' under the legislation? What is 'discrimination' under the legislation? What work related areas are covered by the legislation? What are 'reasonable adjustments' to avoid discrimination? What are 'inherent requirements' of a job? What is 'unjustifiable hardship'? What if disability discrimination happens to you? Other useful resources

Introduction

Any person with a disability has the right to the same employment opportunities as a person without a disability. As a person with a disability, it is therefore important for you to understand your rights and responsibilities in employment, preferably before commencing job-seeking activities. This may assist you to:

• decide whether to disclose your disability or not
• negotiate workplace modifications with your employer
• negotiate flexible work arrangements with your employer
• address any lack of awareness about disability in the workplace
• address any possible discriminatory actions.

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 to encompass physical, sensory, mental and intellectual disability.

"Disability, in relation to a person, means:

• total or partial loss of the person's bodily or mental functions or
•  total or partial loss of a part of the body or
• the presence in the body of organisms causing disease or illness or
• the presence in the body of organisms capable of causing disease or illness or
• the malfunction, malformation or disfigurement of a part of the person's body or
• a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction or
• a disorder, illness or disease that affects a person's thought processes
• perception of reality, emotions or judgment or that results in disturbed behaviour

and includes a disability that:

• presently exists; or
• previously existed but no longer exists; or
• may exist in the future; or
• is imputed to a person¹

The NSW Anti-Discrimination Act (ADA) uses different terminology but includes 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 on the grounds of 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 receives less favourable treatment than a person without a disability in similar circumstances.

	Mr Stevens applied to be a police recruit and declared that he had epilepsy. He was medically assessed and declared fit. He was accepted as a recruit and commenced training. After 4 months he had a seizure. He had only had two seizures in the past 10 years. He was terminated as a result of his epilepsy. He had completed all the training for gaining access to the Police Service except driver training and firearms training. The Tribunal held that direct discrimination had occurred and that the exemptions on the basis of genuine occupational requirement and health and safety did not apply as Mr Stevens could carry out the occupational requirements of a Police Officer other than driving. The Tribunal held that the evidence shoed the chance of Mr Stevens having seizures at work was very low. Driving was not a requirement for all police officer roles and police officers would drive for their colleagues on occasion Stevens v Queensland Police Service [1998] QADT 6 (30 March 1998)

This case demonstrates a form of direct discrimination. The legislation aims to ensure that no one is dismissed on the basis of disability where they can perform the inherent requirements of the job. The employer dismissed Mr Stevens on the basis of his disability even though he was able to meet the requirements of the position.

The tribunal declared that driving was not required for all positions and that his epilepsy history demonstrated low risk.

Indirect Discrimination is where a policy, practice or requirement is applied equally but has a discriminatory outcome for those with a disability.

Indirect discrimination may be hidden and is a common form of complaint. It may not be a deliberate action on anyone’s part but a lack of awareness of the negative impact a policy or requirement may have on a person’s disability. It is often possible to change a policy in a way that still meets the objectives of the requirement but which is not discriminatory.

	Sarah had been employed in a post office for 12 years.  She has degenerative back problems caused by osteoarthritis and she experiences pain if she stands for long periods.  Her employer accommodated her disability for a number of years by allowing her to use a stool but this arrangement ended when the employer introduced a national “no chair” policy for counter staff. The employer identified the stool to be a ‘trip risk’. Sarah was directed to take sick leave until she could provide medical evidence she was fit for duty. The Federal Court of Australia (FCA) found the employer had discriminated against Sarah by not allowing her to use the stool when it had no evidence it was a ‘trip risk’ as claimed and had not investigated the cost of remodelling Sarah’s desk to enable her to use the stool comfortably at the counter. Daghlian v Australia Post [2003] FCA 759 23 July 2003

This case demonstrates indirect discrimination because the standard ‘no chair’ policy of the workplace negatively impacted on Sarah’s ability to meet the requirements of the job. This work requirement was assessed and found not to be an ‘inherent requirement’ of the job and that the employer had not provided ‘reasonable adjustments’ to allow 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. A behaviour does not have to be repeated to be deemed harassment.

Harassment may include:

• physical harassment
• verbal abuse, whether face to face or written, including notes, e-mail or graffiti
• threats
• intentionally demeaning comments or behaviour
• intentional exclusion from work related activities.
• actions that you would reasonably foresee could cause humiliation, offence, intimidation or distress
• unnecessarily intrusive personal inquiries in relation to a person's disability.

What Work Related Areas are covered by the Legislation

The DDA and ADA are applicable to all employees, contract staff, commission agents, agency workers and partnerships of three or more people. It applies to all employment processes including:

• recruitment (advertising, providing 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 who cannot meet the inherent requirements of the work as a result of their disability (see “Inherent Requirements” below)
• the person needs workplace adjustments which would be an unjustifiable hardship for the employer to provide (see “Unjustifiable Hardship” below)

What Are 'Reasonable Adjustments' or 'Work Related Adjustments' of the Job?

Both Acts requires employers to put in place conditions or actions which help ensure equal opportunity for people with a disability. These are commonly referred to as "reasonable adjustments" or "work related adjustments". The legislation does not specify the types of adjustments required to prevent discrimination, as each case needs to be considered in its own circumstances.

Work related adjustments might include:

• changes to recruitment and selection procedures such as the elimination of any medical questions which are not strictly justified by inherent job requirements
• modifications to work premises such as ensuring that work areas and facilities are accessible to a worker with a mobility impairment
• changes to job design, work schedules or other work practices such as providing flexibility with leave arrangements to enable a worker to attend occasional medical appointments
• modifications to such as the fitment of visual fire alarms for Deaf workers
• the provision of  additional training or other assistance such as extending training time for workers with a learning disability
• modifying communication systems or information provision  such as having information available in written format and not just spoken at meetings
• flexibility around hours of work  such as starting and finishing work later to enable a worker to work at their optimum time to suit medication routines.

FACTS:

In a survey of over 800 personnel managers in the UK, by the Chartered Institute of Personnel Development (CIPD, 2003), has 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 easy (3)

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:

	‘Jordan has mild dyslexia and worked in a warehouse picking items. Jordan had not identified his disability until 6 weeks into his probation period because he did not think it would affect his ability to do the job. Jordan had difficulty with the stock numbering system due to his dyslexia. Jordan’s employment was terminated after 7 weeks because of performance issues related to stock being put in the wrong place.  The FMC (Federal Magistrates Court) found that the employer had an obligation to provide reasonable adjustment to Jordan to assist him with extra training and support once they found out about his disability’ Randell v Consolidated Bearing Company (SA) P/L [2002] FMCA 44

Few employees with a disability require work related adjustments. Most workplace adjustments or changes to jobs are simple, cost nothing or are inexpensive, and frequently benefit all employees.

FACT:

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).

If you require funding 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 the Government funded 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 reasonably be allocated elsewhere, are a substantial proportion of the job or have significant consequences if they are not performed.

The inherent requirements of a job are determined by identifying the work reasonably required in the position and whether these can be reasonably met in some other way through reasonable adjustments. Inherent requirements of a job may not be static as a job can change over time.

	Example: Juanita’s disability means that she finds it difficult to work in a room with artificial lighting for more than a couple of hours at a time. Her work involves machine operating, which cannot be relocated to a lighter environment. Juanita's employer has agreed to her having shorter shifts at this work and taking on other tasks in between to ensure she is able to maintain her position."

Although the inherent requirements of the job involve machine operation, the inherent requirement does not involve working on machines for long periods of time each day and the adjustment put in place by the employer ensures Juanita is able to continue her employment.

Under the DDA and ADA, employers are legally required to assess the inherent requirements of the position for an employee with a disability to determine whether these could be reasonably met through the provision of reasonable adjustments. The following case demonstrates this:

	‘Edna had been employed as a childcare worker for 9 years. After a change in management it became apparent to her employer that Edna had difficulties with paperwork due to her vision. The employer sent Edna to an optometrist to have her eyes tested, and on the strength of that report the complainant was stood down from her duties. Edna claimed that she had swapped duties with which she had difficulty with other staff and was able to perform the inherent requirements of the job. The Commissioner found that Edna’s vision impairment had not prevented her from carrying out the inherent requirements of her position, and that no effort had been made to make reasonable adjustments to assist Edna with carrying out the paperwork requirements of her position’. Melvin v Northside Community Service Inc (1996) EOC

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 adjustment is required or being sought
• what detriment would be caused by making the adjustment
• the costs of making the adjustment
• 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 experience (4).

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:

• ADB Complaint form
• HREOC Complaint form

There is no cost to make the initial complaint (prior to Step 5 below)

 

The Complaint Process

A complaint is lodged either to the ADB or HREOC and will initially be assessed to determine whether it comes under disability discrimination legislation. If the complaint does, then an investigation process will occur which will include HREOC or the ADB liaising with all parties involved. A conciliation meeting may then be held with all parties to identify a solution that everyone can agree on. If conciliation has been unsuccessful, the complainant has the right to take the complaint further to the Federal Court or the Federal Magistrates Service (HREOC) or the Administrative Appeals Tribunal (ADB).

Both HREOC and the ADB have comprehensive information about the complaint process on their websites, which can be found at:

• ADB complaint process
• HREOC complaint process

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.

USEFUL CONTACTS

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).

Address: 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

Website:
HREOC website
HREOC Employment Information website

 

NSW Anti Discrimination Board
The NSW Anti Discrimination Board administers the NSW Anti-Discrimination Act (1977)

Sydney Office: Address: 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: Address: 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: Address: 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 1489

Website: NSW Anti-Discrimination Website

 

Disability Discrimination Legal Centre
Address: 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

Email: info@ddlcnsw.org.au
Website: Disability Discrimination Legal Centre Website

Other Resources:

• Listing of other State and Territory Anti Discrimination Bodies

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: Privacy
• 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

• JobAccess website: 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 ?