Disability discrimination happens when someone who has a disability or is perceived as having a disability is treated less favourably than a person without a disability would be treated under the same circumstances. Discrimination may be direct or indirect and may occur in a range of areas of life including at work or in the provision of education, accommodation, or goods and services to the public.
Legislation
Disability discrimination at the federal level is governed by the Disability Discrimination Act 1992. Anti-discrimination legislation also exists at state and territory level.
The federal Act prohibits disability discrimination at work, in education, accommodation, access to premises, in the provision of goods and services and in clubs and sport, in facilities and land and in existing Commonwealth laws and programs.
Direct or indirect discrimination?
Direct discrimination occurs when a person treats another person less favourably than they would if the other person did not have a disability under similar circumstances.
Direct discrimination also occurs when a person fails to make reasonable adjustments for a disabled person and that failure means that the person is treated less favourably than a person without a disability.
Indirect discrimination occurs when a person requires another person to adhere to a condition or requirement that they cannot adhere to because of their disability and this is likely to disadvantage them.
Indirect discrimination also occurs when a person is required to adhere to a requirement or condition that they cannot adhere to unless reasonable adjustments are made to accommodate their disability and those adjustments are not made and this disadvantages the person.
Discrimination at work
Under section 15 of the Disability Discrimination Act 1992, it is unlawful to discriminate on the basis of disability when deciding who should be offered work or when deciding the terms and conditions on which work is to be offered.
It is also unlawful to discriminate in any of the following ways:
- by denying a person access to opportunities for promotion, transfer or training, or by limiting those opportunities;
- by dismissing a person;
- by subjecting a person to any other detriment.
However, when a person is hiring others to carry out domestic duties in their home, these provisions do not apply.
When is it permissible to discriminate?
In some situations, it is lawful to discriminate against a person on the basis of their disability at work. These situations include where the person cannot fulfil the inherent requirement of the position because of a disability and where it would cause unjustifiable hardship to the employer to accommodate their needs.
Inherent requirements
In spite of the protections outlined above, it is not unlawful to discriminate if the discrimination relates to particular work that the person would be unable to perform even if reasonable adjustments were made to accommodate their disability.
When assessing whether a person could perform the inherent requirements of particular work, the following should be considered:
- their relevant training, qualifications and experience;
- their performance (if they already work for the employer);
- any other factor that it is reasonable to consider.
Other contexts where discrimination is prohibited
The Act also prohibits disability discrimination in the areas of education, accommodation, access to premises, the provision of goods and services and in clubs and sport, in facilities and land and in existing Commonwealth laws and programs. The Act contains provisions that relate specifically to each of these areas of public life.
Unjustifiable hardship
Under section 21B if the Disability Discrimination Act 1992, a person may discriminate against another person on the basis of their disability if avoiding the discrimination would cause them unjustifiable hardship.
Criminal offences
The Act establishes several offences that can attract fines and terms of imprisonment.
Under section 42, it is an offence to victimize a person because they have made a complaint or brought proceedings under the Act. This offence is punishable by a maximum penalty of six months imprisonment.
Under section 43 it is an offence to incite acts that are unlawful under the Act or to assist or promote such acts. This offence is punishable by a maximum penalty of imprisonment for six months.
Under section 44, it is an offence to publish a notice or advertisement that indicates an intention to do an act that is unlawful under the Act. This offence is punishable by a fine of 10 penalty units.
Complaining about disability discrimination
When a person experiences discrimination, they may be able to resolve the situation directly with the person or agency involved. If this is not possible, a complaint can be made under the federal Act to the Australian Human Rights Commission (AHRC).
The AHRC will approach the person allegedly responsible for the discrimination, provide them with a copy of the complaint and ask them for a response. It will try to resolve the situation in a way that is acceptable to the parties and may invite the parties to conciliation.
If the situation cannot be resolved through the AHRC, proceedings can be initiated in the Federal Circuit and Family Court of Australia (FCFCA) or in the Federal Court.
State and territory complaints
A person may also initiate a complaint about disability discrimination in the state or territory they live in. If a complaint is made under a state or territory scheme, no complaint can be made to the federal Commissioner. It is important to seek legal advice to ensure that your complaint is made in the most appropriate forum.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
