What is disability discrimination?

In this article, we discuss disability discrimination and the process involved in bringing a complaint about disability discrimination in Australia. We focus in particular on the federal Disability Discrimination Act 1992 (Cth) (DDA), looking at:

• what is unlawful discrimination;
• the relevant definition of “disability”;
• direct and indirect discrimination;
• defences to disability discrimination;
• how to bring a claim for disability discrimination; and
• what remedies or compensation are available for disability discrimination.

There are also state-based discrimination statutes and Commissions/Tribunals that handle those complaints. This blog does not deal with those state-based schemes.

Although the focus of this article is disability discrimination, we can assist you in relation to any sort of discrimination complaint; for example, discrimination related to sex, pregnancy, race, sexuality, age, and other protected attributes.

GET ADVICE FROM A DISCRIMINATION LAWYER:  1800 659 114

Unlawful disability discrimination in Australia

Australian discrimination law is based on the presence of an ‘attribute’ as the basis for discrimination. Some examples include a person’s sex, race, sexuality or disability.

It is generally unlawful to discriminate against someone because of their disability. For example, you cannot discriminate against someone, on the basis of disability, in the following settings:

• employment, including against independent contractors and others;
• education, such as against students;
• the provision of goods, services and facilities;
• the provision of accommodation;
• clubs and incorporated associations; and

Definition of “disability” under the Disability Discrimination Act 1992

The definition of ‘disability’ under the DDA is quite broad. 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 (including because of a genetic predisposition to that disability); or
• is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. For example, a particular symptom of a medical illness suffered by an employee is protected.

Discrimination in the workplace based on disability is unlawful even if your disability is temporary or if someone assumes that you have the disability.

It is also unlawful to discriminate against a person who requires an assistance animal to manage their disability. You can read more about this in our earlier blog, “Assistance animals, discrimination and the law”.

Direct and indirect discrimination

Under the DDA, there are two types of discrimination: direct and indirect.

What is direct disability discrimination?

Direct disability discrimination occurs where an individual (including an organisation) treats a person with a disability less favourably than a person who does not have the same disability, and the less favourable treatment is because of the disability.

Example: During a job interview, a prospective employee discloses that they have been diagnosed with HIV. The employer then refuses to hire them because of their diagnosis and hires someone without HIV instead. This is direct disability discrimination.

What is indirect disability discrimination?

Indirect disability discrimination occurs where:

• an individual (including an organisation) imposes or proposes to impose a requirement or condition; and
• because of their disability, a person cannot comply with the requirement or condition; and
• the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

Example: An employer imposes a requirement that employees must eat their lunch outside, away from the office, but a diabetic may need access to food immediately because of their disability. This disadvantages diabetic employees.

Whether a person or organisation has engaged in discrimination will also depend on whether they provided reasonable adjustments to accommodate the aggrieved person.

What are reasonable adjustments?

For both direct and indirect discrimination, a person or organisation will discriminate against a person with a disability if they fail to make reasonable adjustments for the individual to overcome the disadvantage imposed by the less favourable treatment or condition or requirement.

Example: An employee who suffers from chronic fatigue requests to be allowed to work part-time as recommended by their treating medical practitioner, suggesting that this is a reasonable adjustment. If the employer disagrees, this may be unlawful discrimination.

Defences to disability discrimination

There are several defences available to a person or organisation that has been accused of engaging in discriminatory behaviour. This includes, in employment, the inherent requirements of the job and imposing an unjustifiable hardship in accommodating a person with a disability.

What is the inherent requirements defence?

In some cases, discrimination against a person with a disability will not be unlawful. For example, an employer can argue that their discrimination is not unlawful if the discrimination relates to particular work and, because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even with reasonable adjustments.

Example: An employer refuses to employ a person with a vision impairment as a bus driver because their vision impairment prevents them from being able to safely drive a bus. This is discriminatory but it will not be unlawful because being able to drive safely is an inherent requirement of the job of being a bus driver.

What is the unjustifiable hardship defence?

It is not unlawful to discriminate against another person on the ground of a disability if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. In determining whether there is such a hardship, all relevant circumstances must be taken into account, including, for example, the nature of the benefit/detriment and the financial circumstances of the organisation.

Example: In our earlier example of an employee suffering chronic fatigue, a small business employer would have a good defence to any discrimination claim in relation to refusing their employee’s request to work part-time if the employer can show that this would impose a significant and unavoidable financial hardship on the business.

How can I bring a complaint about disability discrimination?

If you believe that you have been discriminated against because of your disability, in breach of the DDA, you can make a complaint to the Australian Human Rights Commission (the AHRC). The AHRC investigates and conciliates complaints about discrimination and breaches of human rights.

The AHRC does not determine a complaint finally. The AHRC will conciliate with the parties to reach some resolution. In our experience, parties will often come to an agreement at the conciliation conference, although there is no guarantee that they will.

If the complaint does not settle at conciliation, then the aggrieved person may bring an application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia. An aggrieved person cannot bring an application to the Federal Court of Australia unless the complaint has first been dealt with by the AHRC, unless the employee decides to immediately seek an injunction on the Court.

What remedies or compensation are available for a successful disability discrimination case?

The remedies that can be granted by a Court in respect to a claim for disability discrimination include:

1. an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
2. an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
3. an order requiring a respondent to employ or re-employ an applicant;
4. an order requiring a respondent to pay to an applicant damage by way of compensation for any loss or damage suffered because of the conduct of the respondent;
5. an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
6. an order declaring that it would be inappropriate for any further action to be taken in the matter.

However, at conciliation (prior to adjudication), the parties may ask for and agree on a wide range of remedies, including, for example, a written apology or an employer providing education to their employees to avoid disability discrimination from occurring in the future. In other words, agreements at conciliation can be far more flexible, and parties can be more creative in resolving a claim.

Seek legal advice from a lawyer experienced in discrimination law

If you believe that you have been discriminated against based on your disability, it is important to obtain legal advice to determine whether or not you have a claim. You need to ensure that you understand the process involved and your chances of being successful in raising a complaint with the AHRC.

Hall Payne Lawyers are experienced and regularly act on behalf of people who have faced discrimination in employment and other areas. We are highly experienced and can assist you to settle your discrimination claim throughout the complaints process with the AHRC or to litigate the case in the Federal Court.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au