Get ready for uni - for students with disability who are planning for university

FAQ Sheet 8:

What are my rights against disability discrimination in the workplace?

The information below is extracted from 'Education to Employment Package: A Website for Graduates with Disabilities and Employers' by Anna Mungovan, Regional Disability Liaison Officer, Greater Western Sydney Region 2006.

Any person with a disability has the right to the same employment opportunities as a person without a disability. 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.

Definition of '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:

and includes a disability that:

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).

Definition of '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 showed 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:

Work-related areas 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:

It is not disability discrimination where:

Workplace adjustments

Both acts require 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:

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.

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 met in some other way through reasonable adjustments. Inherent requirements of a job may not be static as a job can change over time.

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

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:

Your employer is responsible for thoroughly assessing your request for work-related adjustments before claiming unjustifiable hardship. This includes assessing:

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 withthe NSW Anti-Discrimination Board (ADB) - or the Australian Human Rights Commission.

A complaint needs to have occurred within 12 months to be accepted by the ADB or Australian Human Rights Commission . A complaint made to Australian Human Rights Commission 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 Australian Human Rights Commission if you have already lodged a complaint with the ADB. There is no cost to make a complaint. Your complaint needs to be lodged in handwritten, electronic, braille or audio formats. You can contact the ADB, Australian Human Rights Commission or an advocacy organisation to assist you in writing your complaint. Both Australian Human Rights Commission and the ADB have useful information about the complaint process on their websites:

Footnotes:

  1. Disability Discrimination Act 1992
  2. JobAble (2004), The Benefits of Employing a Person with a Disability
  3. JobAble (2004), The Benefits of Employing a Person with a Disability
  4. Human Rights and Equal Opportunity Commission (2003) Disability Rights, Frequently Asked Questions - What Does Unjustifiable Hardship Mean ?