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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Disability Discrimination in Employment


Disability discrimination in employment is prohibited in Australia under the Disability Discrimination Act 1992. That act prohibits employers from discriminating against persons based on disability either directly or indirectly. This article outlines the law regarding disability discrimination in employment in Australia.

What is disability?

The definition of disability is contained in section 4 of the Act. It is a broad definition that includes physical, psychiatric, sensory, intellectual, neurological and learning disabilities. It also includes physical disfigurement and the presence in the body of disease-causing organisms, such as the HIV virus. The definition extends to previous disabilities that no longer exist as well as present disabilities.

What is disability discrimination at work?

Employers must not discriminate against a person on the basis of their disability:

  • In the arrangements made for determining who should be offered employment;
  • In determining who should be offered employment;
  • In the terms or conditions on which the work is offered.

An employer must not discriminate against a person on the basis of their disability by dismissing them, limiting their access to promotion, transfer or training, or other benefits, or by subjecting the person to any other detriment.

Direct vs indirect discrimination

Disability discrimination can be direct or indirect.

Direct discrimination occurs when a person is treated less favourably than a person without a disability would have been treated in the same or similar circumstances (section 5). Some examples of this are terminating a person’s employment because they are a wheelchair user, or declining to employ a person because they are hearing impaired.

Indirect discrimination occurs when an employer requires an employee to comply with a requirement or condition that they cannot comply with because of their disability or that would disadvantage them because of their disability (section 6). Some examples of this are where the only entrance to a workplace is via stairs, meaning wheelchair users cannot enter, or where all employees are required to work sitting down, meaning those who cannot sit for long periods are excluded.

Reasonable adjustments

If an employer requires a disabled employee to comply with a requirement or condition with which the person could comply only if the employer made reasonable adjustments, the employer must make reasonable adjustments to accommodate the person’s needs. If an employer fails or refuses to make reasonable adjustments and this disadvantages a person with a disability, the employer is discriminating.

An example of where an employer may need to make reasonable adjustments is where an employee in an office job needs to work standing up, rather than seated, because of a medical condition. An employer in this situation should allow the employee to work at a standing desk, rather than sitting down at a conventional desk.

Exceptions

There are two exceptions to the above prohibitions against disability discrimination by employers. These are outlined below.

Inherent requirements

The protections offered by the Disability Discrimination Act do not extend to situations where the disabled person would not be able to carry out the inherent requirements of the work because of their disability, even if the employer were to make reasonable adjustments (Section 21A). This may be the case where the person cannot do heavy lifting because of a disability and the work involves manual labour.

Unjustifiable hardship

The Act’s protections also do not extend to situations where avoiding the discrimination would cause unjustifiable hardship to the employer. This may be the case where the workplace would need to be altered in such a way that could only be done at great expense or with great difficulty, to accommodate the needs of the disabled person. To rely on this exception, the employer would need to show how making the required changes would cause hardship.

Harassment

Section 35 of the Act makes it unlawful for a person to harass someone who has a disability in relation to their disability if the disabled person is an employee, contractor, colleague or a person seeking employment.

Making a complaint of disability discrimination at work

When a person believes they have been unlawfully discriminated against based on their disability in an employment context, they can make a written complaint to the Australian Human Rights Commission. This can be done with or without a lawyer.

The Commission will then investigate the complaint and see if it can be resolved through conciliation.  If the matter cannot be resolved through conciliation, an application can be made to the Federal Court of Australia.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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