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Employment and the Disability Discrimination Act

Guidance and information from the Human Rights and Equal Opportunity Commission

Who should comply with the employment provisions of the DDA?

The D.D.A. applies to all employers.

The D.D.A. draws on all available legislative powers under the Commonwealth Constitution, including the external affairs power.

In addition, some employers are specifically referred to in D.D.A. section 12 because they are covered by other constitutional powers (such as Commonwealth Government employment, employers engaged in interstate trade and employers which are corporations). Specific reference to these employers should not be taken as exempting any other employers.

The D.D.A. also applies to persons acting or purporting to act on behalf of an employer.

For example:

The provisions of the D.D.A. regarding harassment also make an employee liable for his or her own acts of harassment, whether or not the employee was acting or purporting to act on behalf of the employer.

When may employers be liable for another person's actions?

The D.D.A. imposes liability for

Section 123 of the D.D.A. provides that an employer is liable for unlawful acts by agents or employees unless the employer has exercised "due diligence" and taken "reasonable precautions" to avoid the unlawful act.

An employment recruitment agency, for example, would be an agent under Section 123.

This provision applies to any actions within the "actual or apparent authority" of the employee, agent or director. In such cases the employer would bear the onus of demonstrating that reasonable precautions had been taken and due diligence exercised.

The D.D.A. does not define what constitutes due diligence or reasonable precautions. The Federal Court has held that the concepts of reasonable precautions and due diligence require active measures. An employer who has done nothing to prevent or remove harassment simply because it was not known that it was occurring is not likely to be able to establish the defence under Section 123.

A single model of reasonable precautions and due diligence against discrimination cannot be prescribed. However, the elements of an effective strategy that should be considered include

What are an employer's obligations under the D.D.A.?

An employer's main obligations under the D.D.A. are

These obligations, regarding people with a disability and also associates of people with a disability, apply in relation to

The obligation not to harass a person with a disability also applies in any other circumstances in relation to employment.

What is discrimination under the D.D.A.?

The D.D.A., like State and Territory and other federal discrimination laws, covers direct and indirect discrimination.

Direct discrimination

It is discrimination under the D.D.A. to treat a person less favourably, because of his or her disability, than a person without that disability would be treated in the same or similar circumstances. This is also known as direct discrimination.

A person is treated less favourably by treatment which is

For example

A requirement for reasonable adjustment does not excuse less favourable treatment

The D.D.A. provides that the fact that a person with a disability may require reasonable adjustments to be made is not a relevant (or "material") difference in circumstances.

For example, taking the cost of required reasonable adjustments out of benefits to which a person would otherwise be entitled is discriminatory treatment.

Some less favourable treatment is permitted if a person cannot perform the inherent requirements of the job.

It is not discrimination under the D.D.A. to

if

Rules which apply equally are not direct discrimination but may be indirect discrimination

It is not direct discrimination to apply treatment or a rule, requirement or condition to a person with a disability if the same rule, requirement or condition is, or would be, applied equally to persons who do not have that disability.

However, treatment or a rule, requirement or condition may involve indirect discrimination if it disadvantages people with a disability and is not reasonable.

Indirect discrimination

The D.D.A. also makes unlawful discrimination by unreasonable treatment which is less favourable in its impact. This is known as indirect discrimination.

It is discrimination under the D.D.A. to impose, apply or maintain a rule, requirement, condition, practice or other treatment which

whether or not the rule, requirement, condition, practice or other treatment is or would be also applied to persons without that disability.

What circumstances should be considered in deciding whether treatment is reasonable

In determining whether a rule, requirement, condition, practice or other treatment is reasonable, all relevant circumstances would be considered. These may include

The Full Federal Court in Catholic Education Office v Clarke helpfully summarised decisions in this area as including the following:

(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. The question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case..
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition. However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.

Rules etc required by the inherent requirements of the job are permitted

If a rule, requirement, condition, practice or other treatment is part of, or made necessary by, the inherent requirements of the job, its removal or modification is not required by the D.D.A..The employment provisions of the D.D.A. implement the International Labour Organisation s Discrimination (Employment and Occupation) Convention, so they are required to be interpreted consistently with that Convention. Article 1.2 of the Convention states:

What is harassment under the D.D.A.?

The D.D.A. makes it unlawful for an employer, or another employee, to harass an employee in relation to his or her disability or the disability of an associate. The D.D.A. also covers harassment in the course of selection for employment.Harassment of contract workers, commission agents or partners and harassment on the basis of imputed or past disability are not included in those provisions of the D.D.A. which deal specifically with harassment. However, these instances of harassment would constitute unlawful discrimination under the more general discrimination provisions of the D.D.A..The D.D.A. does not provide a definition of harassment. The following comments represent the Commission's view, based on case law on harassment under other legislation.

Intended harassment

Harassment includes any actions because of or in relation to the disability of an employee or prospective employee (or the disability of an associate of that person) which are intended to humiliate, offend, intimidate or distress.Examples include

Unintended harassment

Harassment also includes some actions which, although not intended to humiliate, offend, intimidate or distress, do cause and should reasonably have been expected to cause humilation, offence, intimidation or distress.Examples include

Even if an action should reasonably be expected to cause humiliation, offence, intimidation or distress, it is not harassment if the action is not intended to have this effect but is reasonably intended for a legitimate work related purpose. In particular, actions would not be unlawful harassment where they are reasonably intended for the purpose of

Can an employer ask questions about a person's disability?

Yes. Discussion, questions and examinations regarding a person's disability and its effects may be legitimate, necessary and desirable in many cases, for example

The Commission considers that discouraging, or unnecessarily restricting, discussion or inquiries regarding a person's disability in these or other legitimate work related respects would be damaging to effective equality of opportunity and thus would be contrary to the objects of the D.D.A. as well as presenting difficulties for employers. The Commission does not interpret the D.D.A. as having this effect.

This does not mean, however, that every disability related inquiry should be accepted as permitted or desirable. Inappropriate questions or examinations in relation to disability may lead to, or actually constitute, discrimination. Concerns in this area include

Failure to give appropriate protection to confidential personal information in relation to a person's disability may involve or lead to discrimination in some circumstances, as well as discouraging disclosure and discussion of disability related issues.

Employers should also note that a medical, psychological or other expert report does not displace an employer's responsibility for non-discriminatory decision making.

Can standard or routine questions be discriminatory?

A routine question about disability, such as "have you ever had a mental illness?", in an application form or selection process, may have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it may be unlawful indirect discrimination.Indirect discrimination occurs where an unreasonable condition or requirement is imposed which disproportionately disadvantages people with a disability and with which the person with a disability concerned cannot or does not comply. The reference to failure or inability to comply with a requirement does not mean that a person can only make a claim of discrimination if he or she refuses to answer a question or fail to answer truthfully. If people who answer "yes" or would truthfully answer "yes" to a question regarding disability are in fact excluded or disadvantaged, a condition or requirement exists in practice of being able to answer "no".

Can application forms ask about disability?

Employers should note that questions which may be reasonable and permitted at interview, for example to examine whether a person's disability affects their ability to perform the inherent requirements of the job or to determine whether reasonable adjustment is required and possible, will not necessarily be regarded as reasonable or permitted in an application form.

Employers should be cautious about including disability related questions in application forms, other than for the purpose of inviting applicants to identify any adjustments required to ensure equal opportunity in the selection process itself. Routine or standard questions should be reviewed to ensure that they are included for a good reason and not for discriminatory reasons. The D.D.A. (section 30) specifically makes it unlawful to request information for the purpose of an act which is or would be unlawful.

So what inquiries and examinations about disability are permitted?

The D.D.A. does not set out particular forms of words as permitted or prohibited. Rather, the lawfulness of inquiries or examinations under the D.D.A. depends on whether they are for a legitimate purpose and are a reasonable means for achieving that purpose.Employers should ensure that

Employers are also advised to make clear the purpose for which they request or require disability information, to reduce misunderstandings which might lead to fears of discrimination. In the case of White v Westworth and Firvas Pty Ltd, the Commission found that an employer had acted lawfully in asking an employee about her skin condition, since his intention was not to dismiss her or otherwise discriminate but to establish what could be done to solve the problem. This had not been clear to the employee, however, who lodged a D.D.A. complaint because she thought she had in effect been dismissed. Even though in this case the complaint was not upheld, it would clearly be better for all parties in these circumstances if a complaint was avoided in the first place.

Information for equal opportunity and reasonable adjustment purposes

Actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability are permitted by the D.D.A. (section 45) and are encouraged by the Commission. They include inquiries, examinations or actions which are reasonably intended for the purpose of determining the need for, nature of, and possibility of making any reasonable adjustment required.There is no requirement in the D.D.A. that such discussion should occur only after a job offer is made. The Commission rejects any interpretation of the D.D.A. to this effect as inconsistent with the terms and objects of the D.D.A..However, the Commission suggests that generally it will be more appropriate to discuss reasonable adjustment issues in an interview rather than in an application process, except so far as issues concern any need for adjustment in the selection process itself.

Determining ability to perform job requirements

The employment provisions of the D.D.A. implement the International Labour Organisation's Discrimination (Employment and Occupation) Convention 1958. They therefore have to be interpreted consistently with that Convention. The Convention states that "any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination".In the Commission's view inquiries, examinations or actions reasonably intended to determine a person's ability to perform the inherent requirements of the relevant job are lawful under the D.D.A.

Employers should ensure, however, that inquiries or examinations intended to determine a person's ability to perform inherent requirements are a reasonable means for this purpose. A requirement for information or a medical or other examination, although intended to determine a person's compliance with inherent requirements, might be found to be discriminatory if it is so poorly suited to that purpose that it cannot be said to be "based on" the inherent requirements of the job.Not all work related requirements will necessarily be regarded as inherent requirements. However, inherent requirements are not the only permitted basis for decisions under the D.D.A.. Other requirements are also permissible, in particular those

For example, a requirement to be able to perform additional duties which are not part of a person's own job might be reasonable if performance of these duties is sufficiently important; the prospect of the emergency situation is sufficiently substantial and if it is reasonable that the particular person should have to perform them in this situation (perhaps because no other employee can reasonably be expected to be available).Inquiries, examinations or actions reasonably intended to determine a person's ability to comply with reasonable and equally applied job related requirements do not, in the Commission's view, involve discrimination.

Determining insurance and superannuation entitlements

The D.D.A. (section 46) permits distinctions, exclusions or limitations in relation to insurance or superannuation which are reasonable on the basis of actuarial evidence reasonably available and any other relevant evidence.In the Commission's view this necessarily means that reasonable requests or requirements for information or examinations to determine insurance (including workers compensation) or superannuation entitlements are permitted.It may be advisable, however, to separate questions for these purposes as far as possible from questions for the purpose of making employment decisions, to reduce the risk of this information having a discriminatory effect on employment decisions or being regarded by an employee or applicant as having a discriminatory effect.

Compliance with prescribed laws

Inquiries or examinations which are undertaken in direct compliance with another law which is a prescribed law for the purposes of section 47 of the D.D.A. are permitted. At present there are no laws prescribed for this purpose. Note however that requirements contained in another law may well be recognised as inherent requirements or at least recognised as reasonable requirements for indirect discrimination purposes.

What is reasonable adjustment?

For many people with a disability, a major barrier to equal opportunity, equal participation or equal performance at work is some feature of the work situation which could readily be altered. Removal of discrimination, as required by the D.D.A., requires removing this kind of barrier, not just more obvious or direct discrimination based on disability.Making changes to ensure equal opportunity for people with a disability is commonly referred to as "reasonable adjustment" or "reasonable accommodation".

There is no list in the D.D.A. of the types of adjustments required to remove discrimination against people with a disability in employment. Each case needs to be considered in its own circumstances and on its own merits.It is important to remember that most workers with a disability will not require significant adjustments.

Some workers will not require any adjustments. Employers should not assume that all people with a disability (or all carers or other associates of people with a disability) will require adjustments and then use this as the basis for discriminatory decisions.

The advice given here is intended to help employers and other people concerned about what reasonable adjustments are required to comply with the D.D.A.. It is based on the Commission's view of the existing legal obligations of employers under the D.D.A.. It is not intended simply as good advice on "best practice", although there is considerable evidence that making reasonable adjustments is also good business practice.Good practice may involve doing more than the D.D.A. requires.

In particular, the D.D.A. does not require adjustments which involve changing the inherent requirements of a job. In some situations, an employer may benefit from job restructuring of this kind, to take better advantage of the abilities of existing or potential employees with a disability or to avoid losing the abilities of an employee who acquires a disability. Under the D.D.A. it is an employer's decision whether to alter jobs in this way.Employers should note, however, that they may have more extensive obligations in this area under other laws, including State or Territory anti-discrimination laws where applicable, and under laws applying to rehabilitation of workers injured at work.

Where in the D.D.A. is the requirement to make reasonable adjustment?

The term "reasonable adjustment" is not contained expressly in the D.D.A. . However, the D.D.A. definitely requires employers to make reasonable adjustment. The obligation to make reasonable adjustment, as well as applying in relation to employees and applicants for employment, also applies to other economic relationships covered by the D.D.A., including in relation to contract workers, commission agents and partnerships. The requirement to make reasonable adjustment under the D.D.A. applies whether a person's disability was pre-existing or was caused at work and whether it is temporary or permanent.

The general requirement under the D.D.A. to make reasonable adjustment results from D.D.A. section 6, on indirect discrimination. Section 6 defines discrimination as including the imposing of any "requirement or condition" which a person with a disability cannot or does not comply with, if a substantially greater proportion of people without than with the disability can comply with it, and if it is not reasonable. A "requirement or condition" does not have to be a specific rule, policy, direction or action. For example, in Waters v. Public Transport Corporation (1992) 173 CLR 349 the High Court upheld a finding that a tram operator who ran trams and buses without conductors and with steps at the entrance had imposed conditions or requirements of being able to climb steps and being able to board without assistance from a conductor.

Also relevant is D.D.A. section 15(4) which provides that it is not unlawful to dismiss or refuse to employ a person who, because of disability, cannot perform the inherent requirements of the job without additional services or facilities - but only if providing those services or facilities would impose unjustifiable hardship. (For a discussion of relevant concepts in the very similar NSW legislation see Laycock v Commissioner of Police at paragraphs 57 -67.)

What about the adjustment provision in DDA section 5?

A reasonable adjustment requirement was also intended to be incorporated in section 5 of the DDA which deals with direct discrimination. D.D.A. section 5(2) provides that the fact that a person requires different "accommodation or services" does not in itself constitute a material difference in circumstances so as to justify less favourable treatment of a person with a disability. This provision has been found not to impose a positive requirement of making reasonable adjustments as part of avoiding direct discrimination: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 (11 November 2003). Employers should not however be misled into thinking this means that the DDA does not require reasonable adjustment. All it means is that the legal basis of reasonable adjustment is found in the DDA’s coverage of indirect rather than direct discrimination. The decision of the Full Federal Court in Clarke v Catholic Education Office makes clear that the decision of the High Court in Purvis v NSW deals only with the limits of the meaning of direct discrimination under the DDA, and is not a decision that there is no duty under the DDA to provide reasonable adjustments to accommodate a person's disability.Reasonable adjustments may be required to avoid a finding of indirect discrimination. The failure to provide accommodation for a person with a disability may result in that person being unable to comply with a requirement or condition and, if this is considered to be unreasonable in all of the circumstances of the case, this may result in a finding of indirect discrimination. The following extracts from the decision of Justices Sackville and Stone set the relevant principles out clearly.

"In Purvis, the student had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school Principal and the Department of Education determined that [the student] should be enrolled in a special school and should be excluded from the school he was attending."
"The appellant contended that the case was one of direct discrimination. The High Court held that the exclusion of the student did not satisfy the requirements of s 5, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way."
"…it is necessary to take into account that Purvis was not argued as a case of 'indirect disability discrimination' of a kind covered by s 6 of the DD Act."
"The joint judgment specifically stated that none of the considerations to which their Honours had referred 'denies the importance of giving full effect to the indirect disability discrimination provisions of the [DD Act]'. Their Honours also explicitly recognised that 'there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not.'"

"The reasoning in the joint judgment in Purvis does not support the proposition that the appellants appeared to be urging, namely that the DD Act should be construed so as to preclude any requirement that an educational authority 'discriminate positively' in favour of a disabled person. The concept of 'positive discrimination' is itself of uncertain scope and does not provide a sure guide to the construction of the statutory language, in particular to s 6 of the DD Act."

These comments were made in relation to discrimination and reasonable adjustment in education but clearly are also relevant to how section 6 of the DDA should be applied in relation to other areas including employment. The explanatory memorandum and second reading speech accompanying the introduction of the DDA clearly indicate that the Act was intended to require employers (and other parties with obligations under the legislation) to make reasonable adjustments to accommodate people with disabilities - subject to a range of important limitations, in particular by reference to the concepts of "unjustifiable hardship" and the "inherent requirements" of a particular job.

As noted above, requirements under the DDA to make reasonable adjustments arise from DDA section 6, which (shortly stated) defines indirect discrimination as including any unreasonable requirements which disadvantage people with a disability. In the context of employment, relevant requirements also arise from DDA section 15(4) which provides that it is not unlawful to dismiss or refuse to employ a person who, because of disability, cannot perform the inherent requirements of the job without additional services or facilities - but only if providing those services or facilities would impose unjustifiable hardship.Comments made in some decisions following the Purvis case on issues related to reasonable adjustments need to be read in the light of the Full Court decision in Clarke.

What purposes may reasonable adjustment be required for?

Reasonable adjustment may be required to enable a person with a disability to

Note that this means that reasonable adjustment is not necessarily a "once and for all" process to be considered only at the time of selection or recruitment.

What types of adjustment may be required?

Reasonable adjustment may include one or more of the following types of adjustment:

What information on reasonable adjustment should employers use?

Assumptions about people with a disability frequently include inaccurate beliefs about the type or level of adjustment needed (if any) and the potential costs of adjustment.

An employer (or other person covered by the D.D.A.) should not simply assume that a person with a disability will not be able to perform some of the requirements of a particular job or that any adjustment will be too difficult or costly. Equally, it should not be assumed that no adjustments are necessary. Employers should make adequate efforts to ascertain whether any reasonable adjustment is necessary and possible.

An employer who fails to make reasonable adjustments where required will be exposed to liability for unlawful discrimination as well as missing the opportunity of using the abilities of present and potential employees most effectively. An employer who did not know that an adjustment was required or possible will still be liable for failing to make the adjustment, at least if he or she should reasonably have been aware that the adjustment was required and possible. See for example the decision in Humphries and Humphries v Department of Education, Employment, Training and Youth Affairs . Unlawful discrimination was found to have resulted from a failure to make reasomnable adjustments necessary for current job performance and for equal opportunity for promotion. Commissioner Charlesworth said

(Note: This case has been referred back to the Commission by the Federal Court because no less favourable treatment under section 5 should have been regarded as proved. See Commonwealth of Australia v Nerilie Ann Humphries & Others. This decision is consistent with the view set out above that the obligation to make reasonable adjustment is principally based on section 6 of the D.D.A., not section 5. It clearly should not be taken as a decision that there is no obligation to make reasonable adjustments under the D.D.A.. In the Commission s view, Commissioner Charlesworth s remarks and findings of fact quoted here continue to remain relevant and useful in illustrating the meaning of reasonable adjustment. These findings of fact were not set aside by the court although the Commission was required to reconsider the application of the law to those facts. Nothing here should be taken to prejudge that reconsideration of that particular case.)

In deciding whether an employer should reasonably have been aware an adjustment was required and possible, all the circumstances would be considered. Relevant circumstances may include

People with a disability themselves are often a major source of information on reasonable adjustment. Of necessity, many people with a disability have expertise in the adjustments or accommodation appropriate for them, including in employment. For example, when the inherent requirements of a job are discussed at a job interview, many people with a disability can identify simple adjustments or accommodations to enable them to perform these requirements.

Consideration should be given to any information provided by or on behalf of a person with a disability concerned in determining what reasonable adjustments may be required. A person's preferred form of adjustment should be seriously considered but that particular form of adjustment does not need to be provided if another adjustment would be effective in achieving the purpose of the adjustment or if making the preferred adjustment would impose unjustifiable hardship.

A person who does not disclose a need for adjustment, or cannot identify an effective adjustment, does not for that reason alone lose any entitlement to have reasonable adjustment made if the employer was aware or should reasonably have been aware an adjustment was required and could reasonably have identified an effective adjustment. The decision of the Commission in Humphries and Humphries v Department of Education, Employment, Training and Youth Affairs emphasises this point. Commissioner Charlesworth noted that counsel for the respondent had

What information or advice may be required, other than from the person with a disability concerned, will depend on the particular circumstances. These sources of advice may include

When does reasonable adjustment need to be made?

A requirement for reasonable adjustment may arise at any stage of the employment process. Reasonable adjustments should be implemented as promptly as is reasonably practicable, to avoid liability for discrimination during any period when adjustments have not yet been made but should have been. (For example, delay in implementing reasonable adjustments to work equipment was one of the major reasons for the unlawful discrimination found by the Commission in McNeill v Commonwealth of Australia.)An adjustment which is not able to be implemented within a reasonable time, having regard to work requirements and organisation in the particular circumstances, may for that reason be found not to be a reasonable adjustment required by the D.D.A.. But this should not be taken to encourage or excuse unreasonable delay in making an adjustment

What limits are there on obligations to make reasonable adjustment?

Unjustifiable hardship / unreasonableness

Reasonable adjustment does not include adjustments which would impose an unjustifiable hardship on the employer (in the case of adjustments to enable a person to perform the inherent requirements of a job) or which would be unreasonable. The Commission's view is that in this area the concepts of unreasonableness and unjustifiable hardship are often closely equivalent in effect.

Inherent requirements of the job

Reasonable adjustment required by the D.D.A. need not, in the Commission's view, include

except as part of a program of training or rehabilitation reasonably likely to enable the person to perform the requirements of the job concerned within a reasonable period.

This is confirmed, for example, by the decision of the Federal Court (May 2002) in Cosma v Qantas Airways . An employee unable to return to his pre-injury duties after a substantial rehabilitation period was found to be unable to perform the inherent requirements of the job, so no unlawful discrimination had occurred in terminating his employment. Ability to perform inherent requirements was to be measured against the pre-injury job, not against work which had been given during the rehabilitation program: otherwise there would be a disincentive for employers to provide modified duties while attempting rehabilitation. The Court said:

The provision does not require the employer to alter the nature of the particular employment or its inherent requirements. Rather it is a question of overcoming an employee's inability, by reason of disability, to perform such work. This is to be done by provision of assistance in the form of "services", such as providing a person to read documents for a blind employee, or "facilities" such as physical adjustment like a wheel chair ramp.

The same approach has been taken by the Commission in dealing with complaints.For example: An employee who had sustained a back injury complained that she had been discriminated against by her employer failing to find her any duties to return to when she regained fitness to work.  The Commissioner declined the complaint. The employee's position had been restructured for non-discriminatory reasons and she was unable to meet the inherent requirements of the jobs now available. The Commissioner referred to comments on the concept of inherent requirements by Justice Drummond in Commonwealth of Australia v HREOC and noted that, as indicated in the draft Disability Standards on employment, an employer was not obliged by the DDA to change the inherent requirements of a job to suit an employee (1999).

In another case, an employee with a disability resigned when his employer, a manufacturing company, modified his job and requested him to learn to use computer aided design equipment. Confirming a decision by the Disability Discrimination Commissioner to decline the complaint, the delegate of the President found that the man was unable to perform the inherent requirements of the job as it now existed (6 April 1998).

In another case, the President decided, confirming a decision by a delegate of the Disability Discrimination Commissioner, that there is no obligation under the DDA for an employer to find a new position for an employee who, because of disability, is unable to perform the duties of his or her own job (28 November 1995).

Of course, unlawful discrimination may also be found if other employees are offered job re-design or transfer but employees with a disability are not.Employers should note that they may have more extensive obligations in this area under other laws. Employers should also be careful not to assume that all existing job requirements are inherent requirements. In dealing with a complaint the Commission or the Federal Court may conclude that a particular requirement is not in fact an inherent requirement. In such a case, if the requirement disadvantages people with a disability it will be unlawful unless it is a reasonable requirement and applies, or would be applied, equally to people without the disability.

Can reasonable adjustment be required for carers and other associates?

The D.D.A. applies to discrimination against associates of a person with a disability, such as spouses, partners, parents or carers, as well as to discrimination against people with a disability themselves: see D.D.A. sections 15, 16, 17, 18. The precise working of the law in this area is complex. Sections 5 and 6 of the D.D.A. explain the concept of discrimination only as it applies to a person with a disability and yet this concept has to be applied in a way that gives meaning to the prohibition on discrimination against associates in other sections including sections 15 to 18.The Commission's view is that the obligation to make reasonable adjustments applies where these adjustments are required by a person's role as a carer or other associate of a person with a disability. In some cases, similar obligations will apply under the Sex Discrimination Act and other laws dealing with family responsibilities. Some forms of adjustment will be more relevant than others to the position of carers and other associates, for example a requirement for flexibility in working hours or use of leave entitlements.

What does unjustifiable hardship mean?

The D.D.A. does not define unjustifiable hardship. D.D.A. section 11 provides that, "in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account", including

As with other parts of the D.D.A., the term unjustifiable hardship is also required to be interpreted and applied having due regard to the scope and objects of the D.D.A., in particular the object of removing discrimination as far as possible.Decisions regarding unjustifiable hardship may include considering the following factors.

Direct benefits of adjustment

The direct need for and benefits of the adjustment, in enabling an employee to work effectively or participate equally in the workplace, will obviously be highly relevant to justifying any hardship involved. In some cases, benefits to the employer to be achieved by reasonable adjustment may also mean that, all things considered, there is no hardship to justify.

Are there any net financial costs to the employer?

For there to be unjustifiable hardship, some hardship must first be shown.Where a claim of unjustifiable hardship relates in part or wholly to cost, consideration should be given to the net costs (or benefits) which are identifiable or reasonably likely to result overall for the employer, not simply the direct or upfront or gross costs.This may require taking into account:

Is the employer able to bear the costs of an adjustment?

Where an adjustment involves costs, determination of unjustifiable hardship may require determination of whether the financial position of the employer allows those costs to be met. This does not mean that any adjustment which there are funds to provide must be provided or that costs will always be the only factor to consider. Where the ability of an employer to meet costs of an adjustment is an issue, consideration may be required of issues such as

Is there any other benefit or detriment to any person that should be considered?

In addition to the financial costs and financial benefits of making the adjustment and the benefit of providing equal opportunity, treatment or participation to the person with a disability directly concerned, consideration may be required of

Action plan

Where the employer concerned is a service provider and has given an action plan to the Commission under section 64 of the D.D.A., consideration of unjustifiable hardship will include any relevant terms of that action plan and any relevant evidence regarding its implementation.While service providers are invited to prepare action plans, rather than employers as such, a service provider may be (and often is) also an employer. An action plan, though principally concerned with non-discriminatory service provision, may also contain provisions relevant to employment.

For example, modifications to make work premises or information accessible for customers may also benefit employees. Equally, a service provider might well include in an action plan some provisions more directly concerned with equality of opportunity, on the basis of a decision that achieving non-discriminatory service provision requires more effective use of the knowledge and experience of employees or potential employees with a disability.

What does "inherent requirements" mean?

The DDA uses the concept of "the inherent requirements of the job" in defining discrimination and in defining some of the exceptions to the obligation not to discriminate.The term inherent requirements is not defined in the DDA. In the Commission's view, inherent requirements need to be determined in the circumstances of each job. They may include:

(On ability to work in the team or work organisation, see the Commission's decision in Y v Australia Post. On ability to work safely as an inherent requirement, see the decision of the High Court in  X v Commonwealth of Australia and HREOC (2 December 1999) and the decision of the Commission in Woodhouse v Wood Coffill Funerals, and the decision of the NSW Admninistrative Decisions Tribunal in Laycock v Commissioner of Police). See also the decision of the High Court in Qantas Airways v Christie on inherent requirements generally.) If a complaint is made, the complaint handling authority (the Commission, State or Territory equal opportunity authorities, or the Federal Court) may need to decide two questions of fact:

As indicated by the Commission's decision in Woodhouse v Wood Coffill Funerals , relevant factors may include

Market or customer service requirements and industrial circumstances may be relevant to determination of the inherent requirements of a job. However, this will not be accepted as authorising or excusing otherwise unlawful actions in giving effect to discriminatory preferences of customers, other employees or other persons.

Is it enough to rely on a medical report in making decisions about inherent requirements?

Not necessarily. Simply relying on a medical assessment does not remove the employer's own responsibility for making decisions in this area. See for example the decision of the Commission in Melvin v Northside Community Service. Ms Melvin was dismissed because of her impaired eyesight, after ten years employment with the respondent as a child care worker. The dismissal was based on an optometrist's report that Ms Melvin was "legally blind". The report however did not answer the questions the employer had asked, or address Ms Melvin's ability to perform the inherent requirements of the job.The Commission found that Ms Melvin had been unlawfully discriminated against. It accepted specialist medical and other evidence that she could in fact perform the inherent requirements of the job. Ms Melvin was awarded over $56,000 in damages.

Does this mean medical evidence is irrelevant?

No. The fact that an employer remains responsible for his or her own decisions does not mean that medical evidence is irrelevant. Compare the Commission decision in R v State of Victoria . The complainant, who has a severe colour vision defect, alleged that the Victoria Police discriminated unlawfully by rejecting his application for employment. The respondent argued that, because of the disability, R would be unable to carry out the inherent requirements of his employment as a member of Victoria Police.The medical evidence indicated that R would not be able to distinguish colours that require red-green differentiation and would have difficulty detecting or identifying some combinations of colours. In particular R would have difficulty with traffic signal lights when shown against a back drop of other lights. Having regard to this evidence and evidence of the duties which police officers are required to perform the Commission found that R would be unable to carry out the inherent requirements of employment as a police officer.This case also illustrates the point that employers should ensure that any medical advice they are relying on remains up to date and relevant to the current requirements of the job. The Commission stated

In some cases independent medical or other relevant expert evidence may be highly desirable as a means of resolving disputes about whether a person can perform job requirements.

In the case of Allender v Department of Human Services, Victoria the employer was found to have discriminated unlawfully by requiring an employee to take a long period of unpaid leave while questions about his fitness for work remained unresolved. The Commission said

In my opinion, there could have been no criticism of the Respondent had it deferred a decision on the question of redeployment in order to undertake an immediate independent inquiry into both the Complainant's ability to carry out the inherent requirements of his position and the question of any occupational risk. However, it did not do that.It initially placed the responsibility for satisfying the Respondent on these matters squarely on the Complainant. When the successive efforts of the Complainant failed to satisfy the Respondent, it then allowed matters to drift, both during the period following the tender of [a doctor's] certificate on 20 January 1995, and the drawn out process associated with the workplace assessment arranged by the CRS. In short, a period of 12 months elapsed before the Respondent finally grasped the nettle and arranged for an independent assessment in October 1995. That assessment was essentially favourable to the Complainant and led to the preparation of a return to work plan. An immediate reference to an independent medical practitioner in October 1994 would have saved the Complainant from enormous detriment.

See also the decision in Macpherson v Telspec Pty Ltd (14 May 1998). In that case an electrical engineer complained that he had felt forced to resign when his duties were altered after his employer imputed to him a disability of low tolerance to electricity. The Commission found there had been no discrimination, and the employer had acted reasonably in the interests of health and safety and as it would have done in the case of any employee. This was because the employer had offered him other duties which were within his duty statement and appropriate to his qualifications and had only altered his duties for a brief period until an expert assessment could be obtained to resolve the issue. The Commission said

"The imputed requirement with which the complainant was unable to comply, an inability to operate machines without the risk of shock because of his low tolerance to electricity, was perfectly reasonable in the short term until a definitive medical assessment could be obtained."

What exceptions are there under the DDA?

Equal opportunity

The DDA does not make unlawful actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability or to provide benefits to people with a disability or a particular disability in relation to specific needs - see DDA section 45.

In the Commission's view this also means that inquiries, examinations or actions are lawful which are reasonably intended for the purpose of determining the need for and nature of any reasonable adjustment required, including in relation to whether such adjustment may be made without unjustifiable hardship.

Inherent requirements

The DDA does not make it unlawful to dismiss, or to refuse or fail to employ, a person who cannot perform the inherent requirements of the job - see DDA section 15(4). In the Commission's view this also applies to

Superannuation and insurance

The DDA does not make unlawful any distinctions, exclusions or limitations in relation to insurance or superannuation which are reasonable on the basis of actuarial evidence reasonably available and any other relevant evidence - see DDA section 46.In the Commission's view this means that inquiries, examinations or actions are also lawful which are reasonably necessary to determine entitlements and obligations of the employer, employee or potential employee or other relevant parties in relation to superannuation or insurance including workers compensation.

Direct compliance with a prescribed law

The DDA does not make unlawful actions in direct compliance with a law which is a prescribed law for the purposes of section 47(2) of the DDA. Information on prescribed laws is available on the Human Rights and Equal Opportunity Commission website.

Health or safety

The DDA specifically states that it does not make unlawful measures which are reasonably necessary in the circumstances to protect the health or safety of any person where the disability in question is an infectious disease - see DDA section 48. In the Commission's view this provision only restates what in any event is the effect of the DDA in relation to any disability, because it will be an inherent requirement of any job to be able to work without unacceptable risks to self or others. However

A useful discussion of what is meant by "reasonably necessary" is provided in the decision of the Victorian Civil and Administrative Tribunal in Hall v Victorian Amateur Football Association :

What is "reasonably necessary" is different from what is "necessary' and also from what is "reasonable". We do not take the view that the term "reasonably necessary" is meaningless, because the action is either necessary or it is not ... The test is not an absolute test. The ban need not be necessary in absolute terms, but must, on a reasonable judgment, be necessary for the specified purpose.The belief of the person who seeks to rely on s.80(1), at the time when the relevant conduct took place, as to whether or not the conduct was reasonably necessary for the specified purpose, and the enquires (if any) reasonably made by that person and the information reasonably available to that person about whether or not the conduct was reasonably necessary for that purpose, are also relevant. It is not enough if the respondent believes the ban is necessary for the specified purpose if the ban is not, on a reasonable judgment, necessary for that purpose.

In determining whether or not [the exemption] applies, all the circumstances of the case are relevant. In this case, the relevant factors can be set out as a series of questions as follows -

(1) What is the class whose health and safety are to be protected? What is the size of that class?

(2) What is the risk from which that class is being protected? What is the magnitude of that risk? What are the consequences to the class to be protected if the risk becomes reality?

(3) To what degree will the ban protect the health and safety of the class? Will it eliminate or reduce the risk to the health and safety of that class?

(4) Does the ban contain within itself any risk to the health and safety of the class?

(5) Are there measures currently in place to protect the health and safety of the class from that risk? Are they effective to protect the health and safety of that class from that risk?

Will the ban give that class a protection from that risk of a kind or degree that those current measures do not give?

(6) Are there non-discriminatory alternatives that will give the class protection from the risk that is equal to or better than the ban? If there are, is there any reason why it may be impracticable for the respondent to adopt these alternatives?

(7) Did the respondent, at the time of the ban, believe that the ban was reasonably necessary to protect the health and safety of the class? On what information or enquiries was this belief based? What information on the matter was reasonably available to the respondent?

These factors must be balanced against each other to arrive at a decision of whether or not, in all the circumstances, the ban is reasonably necessary to protect the health and safety of the class.

See also the discussion by Commissioner W.Carter in Beattie v Maroochy Shire Council:

What is reasonably necessary will depend on the circumstances of the individual case and, in the present context, will depend very much upon the present state of acceptable scientific knowledge and research in order to determine whether a particular act or decision can be said to be reasonably necessary to protect public health. If such a decision is made arbitrarily, or for irrelevant and improper reasons, then it clearly fails the test of reasonableness. On the other hand, it seems to me that if a decision is taken for the alleged purpose of protecting public health, that decision will be seen to be reasonably necessary for that purpose if properly qualified and appropriately experienced persons, after taking into account and balancing all of the relevant competing circumstances and by using and relying upon the results of current medical knowledge and research, decide honestly and with integrity that the particular decision needs to be taken in the best interests of the general health of the community. The test so formulated immediately rejects any whimsical, arbitrary or intellectually dishonest process of decision making. It necessarily involves the making of a decision which is professionally qualified, soundly based on appropriate expertise and scientific experience, and which is supported by valid objective criteria and which rejects irrelevant considerations in favour only of those which are designed to achieve the optimal result in terms of the public health of the community.

Modified wage based on productive capacity

The DDA does not render unlawful anything done by a person in direct compliance with

to the extent that the order, award or agreement has specific provisions relating to the payment of rates of salary or wages to persons, where

- see DDA section 47(1)(c). The Commission interprets the reference to salary or wages being "determined by reference to the capacity of the person" as applying to reasonable determination by reference to productive capacity in the job concerned.

Combat and related duties

The DDA does not apply to discrimination (but does apply to harassment) on the ground of a person's disability in connection with employment, engagement or appointment in the Australian Defence Force

- see DDA section 53. The terms "combat duties" and "combat related duties" have effect as specified from time to time in the Regulations. "Prescribed circumstances" are circumstances prescribed by the Regulations.

Domestic duties at the employer's home

The DDA does not apply to discrimination (but does apply to harassment) in arrangements made for the purpose of determining who should be offered employment, or in determining who should be offered employment, in relation to domestic duties to be performed at the employer's private home - see DDA section 15(3).

Does the DDA set out all of an employer's obligations regarding people with a disability?

No. The DDA applies in conjunction with other laws and standards regulating employment. Employers should note that in some areas they may have more extensive obligations under other laws including

How can employers comply with the DDA as well as health and safety requirements?

The DDA itself does not set out in detail how it relates to health and safety issues. The following comments represent the Commission's opinion taking into account relevant case law.You may also be interested in advice from the U.K. Disability Rights Commission on this issue.

People with a disability are entitled to equal protection of health and safety

Non-discrimination in terms and conditions of work, as required by the DDA, includes equal protection of health and safety in relation to work for people with a disability as for other employees. This includes, as necessary, effective access to relevant information and training and any reasonable adjustments required to equipment, facilities or work procedures to ensure safety for all workers including people with a disability. In this respect, concurrent and similar obligations arise under the DDA and under occupational health and safety legislation.

A person who cannot work safely does not meet the inherent requirements of the job

The DDA provides that a person who cannot perform the inherent requirements of the job need not be employed and may be dismissed without unlawful discrimination occurring. Meeting reasonable occupational health and safety standards must be accepted as being among the inherent requirements of any job.In X v The Commonwealth (2 December 1999) all members of the High Court emphasised that the inherent requirements of a job are not restricted to performance of the physical tasks involved. Justice McHugh commented: "It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context." The ability to work safely (that is, without unreasonable risks to others) has been previously noted by the Commission as an inherent requirement: see Woodhouse v Wood Coffill Funerals (Commissioner Innes).

However, this does not include restrictions or exclusions which are not justified by real risks or for which there are less restrictive alternatives reasonably available.See also the comments on medical evidence in these notes.

In deciding whether a person can meet inherent requirements, possible reasonable adjustment must be taken into account

In determining whether a person can perform the inherent requirements of a job, the Commission and the courts are required to consider whether the person could perform these requirements if some adjustment is made, including adjustments to facilities, equipment, work practices or training. If such an adjustment would be effective it must be made, unless it would impose unjustifiable hardship on the employer or other affected parties. The concept of "unjustifiable hardship", as set out in section 11 of the DDA, is not restricted to financial hardship but includes consideration of any relevant detriment or benefit, including risks to health and safety.In the oocupational health and safety area, reasonable adjustment might involve changes to make work safer for all employees. For example, safer manual handling practices, or substitutes for manual handling, make work safer for all employees as well as removing some barriers to workers with pre-existing injuries or disabilities. Other adjustments might address more specifically the needs of workers with a disability.In Woodhouse v Wood Coffill Funerals the Commission accepted evidence that a pallbearer who could not carry coffins safely because of his disability would have been able to perform this requirement if he were provided with a small amount of training, which would not have imposed unjustifiable hardship. The Commission decided that it had been unlawfully discriminatory to dismiss him. The Commission said

Health and safety must be protected by non-discriminatory means wherever possible.

The Federal Court is unlikely to accept that an exclusion or restriction on health and safety grounds is justified by the inherent requirements of the job where a non-discriminatory solution to the same issue is reasonably available. The other exemptions provided for in the DDA also require a close connection between the health and safety purpose to be achieved and the measures adopted.There is an exemption in the DDA regarding infectious diseases - see section 48. This applies to measures "reasonably necessary" to protect public health and clearly is not a general licence to exclude or discriminate against people who have an infectious disease.

The more general exemption in DDA section 47 for actions in direct compliance with other laws (which applied regarding all other laws until 1 March 1996 and laws prescribed by regulation thereafter) would only protect actions taken for occupational health and safety reasons where these actions are "in direct compliance" with occupational health and safety laws.The Commission regards this exemption as restricted to situations in which, if the discriminatory action is not taken, there will be a breach of occupational health and safety law. If there is an alternative means available of complying with occupational health and safety requirements, the discriminatory action will not be protected.

Does the DDA cover voluntary work?

Voluntary work is not employment as defined in the DDA (unlike some State and Territory legislation which does cover voluntary work directly). However, in some situations volunteers may come within the areas that the DDA does cover. In particular, where the opportunity to undertake voluntary work is part of the benefit of membership of an association or is part of a Commonwealth program or is part of a course of study offered by an education provider, discrimination affecting this opportunity would be covered by the DDA.

Can employers advertise only for people who have a particular disability?

Yes. The DDA provides for complaints only where a person alleges discrimination on the basis of a disability which that person has (or which is imputed to him or her, or he or she had in the past or may have in the future or the disability of an associate). A complaint that a person has been discriminated against because he or she does not have a disability or the particular disability which is a criterion for eligibility for a program or opportunity has no basis in the DDA. In any event, section 45 of the DDA specifies that the discrimination provisions of the legislation do not make it unlawful to do any act which is "reasonably intended" to ensure that persons who have a disability have equal opportunities with other persons or afford persons who have a disability or a pa