Frequently asked questions: Employment
Part 2 Go to Part 1
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:
- the ability to perform the tasks or functions which are a necessary part of the job
- productivity and quality requirements
- the ability to work effectively in the team or other type of work organisation concerned
- the ability to work safely.
(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. 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:
- what is the job concerned?
- what are the inherent requirements of that job?
As indicated by the Commission's decision in Woodhouse v Wood Coffill Funerals , relevant factors may include
- the work required in practice by the employer to be performed by employees in the position concerned and comparable positions - a requirement in a duty statement which does not apply in practice may be found not to be part of the inherent requirements of the job as it really exists
- evidence regarding any need for duties which are additional to those currently performed but which may require performance in an emergency or at periods of high workload - for example, ability to assist passengers in an emergency would be an inherent requirement for airline cabin crews even if staff of the airline concerned have never had to perform this function in an accident
- the extent to which a particular requirement concerns a result to be achieved rather than a means for achieving a result - results required are more likely to be found to constitute part of the job, and an ability to achieve these results to be an inherent requirement, whereas an ability to use a particular method of achieving a result is less likely to be found to be an inherent requirement, and more likely to be subject accordingly to a requirement for reasonable adjustment where this is possible without unjustifiable hardship
- the circumstances in which the work is performed or to be performed - what are inherent requirements in the circumstances of one particular job will not necessarily be inherent requirements for a job which involves the same tasks but different circumstances
- the terms of applicable awards or agreements including applicable competency standards - this does not mean that awards and agreements will necessarily be accepted as conclusively prescribing inherent requirements, but "the job" and hence its inherent requirements may be defined in part by awards or industrial agreements rather than only by an implicit or explicit contract of employment or by custom and practice
- the terms of any applicable duty statement - although the DDA does not require employers to have written duty statements and where a duty statement does exist it will not necessarily be conclusive. A requirement contained in a duty statement might not be found to be an inherent requirement. The Commission and the courts have emphasised that a requirement is not inherent simply because it is stipulated in a duty statement or contract of employment. Equally, a requirement might not appear on a duty statement but still be found to be an inherent requirement
- any mandatory requirements which apply because of the provisions of another law, including in relation to health and safety - employers should note however that any discriminatory provisions in State or Territory laws or in Federal laws earlier than the DDA do not prevail over the DDA except where they have been prescribed for this purpose under DDA section 47(2). At present no laws have been so prescribed.
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 an appropriate case, it may be necessary for the Commission to look again at the colour vision standards for admission to the Force. It is noted that further scientific work is being done on that but the results are not yet available.
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.
For example: An employee complained that he had been discriminated against on the basis of his knee injuries when his employer required him to submit to a second medical examination before it would consider providing him with funds for pilot training under its training or rehabilitation schemes. The Delegate of the President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. Evidence indicated that there had been problems with the legibility of the original medical clearance provided and that it was unclear how far the doctor providing that clearance knew of the injuries in question. The President noted that if the complainant was correct in his opinion that his injuries should not prevent him flying then this should be confirmed by a second medical examination. He referred to the paramount importance of the safety of a potential pilot's future passengers and decided that the inconvenience to the complainant in attending a second examination was easily outweighed (13 May 1998).
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 saidIn 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.
For example: The President decided, confirming a decision by the Disability Discrimination Commissioner to decline a complaint, that it was not harassment or unlawful discrimination for supervisors to make comments on the gait of a nursing student with a physical disability, since these comments were intended for purposes of teaching and assisting her in working more effectively (5 December 1994)
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
- promotion or transfer of existing employees
- inquiries, examinations or actions which are reasonably intended for the purpose of determining a person's ability to perform the inherent requirements of the relevant job.
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 Australian Human Rights 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
- this does not apply to exclusions or restrictions which are not in fact reasonably necessary but are based rather on outdated information, inaccurate assumptions or prejudice
- this does not imply that people with a disability generally present increased health or safety risks or that any particular person with a disability presents such a risk.
Modified wage based on productive capacity
The DDA does not render unlawful anything done by a person in direct compliance with
- an order or award of a court or tribunal having power to fix minimum wages
- a certified agreement within the meaning of the Workplace Relations Act 1996
- an Australian Workplace Agreement within the meaning of the Workplace Relations Act 1996
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
- if the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension and
- the salary or wages are determined by reference to the capacity of that person
- 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
- in a position involving the performance of combat duties, combat-related duties or peacekeeping service
- in prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service
- in a position involving the performance of duties as a chaplain or a medical support person in support of forces engaged or likely to be engaged in combat duties, combat-related duties or peacekeeping service.
- 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
- State and Territory laws regarding discrimination
- laws about rehabilitation or compensation of employees following an injury or illness
- laws about protection of health and safety
- laws about unfair dismissal.
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).
For example: An employee complained that he had been discriminated against because of a requirement to wear a safety helmet, which caused him difficulty and discomfort because of his disability. Confirming a decision of a delegate of the Disability Discrimination Commissioner, the President found there had been no unlawful discrimination. He found that it was reasonable for the employer to require the employee to wear a helmet to comply with occupational health and safety requirements (25 October 1996).
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
The evidence is that Mr Woodhouse could not carry either a coffin or a stretcher containing a deceased person as smoothly as other employees of the respondent, and I accept the respondent's assertion that he could not do so in a manner which was safe for other employees. However, I also accept the evidence of Dr Baz that, with appropriate training, the complainant could have altered his gait so that he could have carried coffins more smoothly. The provision of such training would have constituted a minor expense to the respondent. It would have meant Mr Woodhouse taking time off to attend the necessary sessions, and relatively minor expenditure for the cost of such sessions. When weighed against the costs involved in losing a current employee (who was housed in the respondent's premises) and recruiting and training another, such costs would be very small, and would certainly not constitute an unjustifiable hardship to the respondent in terms of the Act.
It is incumbent on employers to ensure that their employees are appropriately skilled and qualified to carry out the work for which they are employed. This obligation not only involves general training for all employees. It involves specific training and support for an employee who is deficient in a particular area.
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.
(See also the views of the Queensland AntiDiscrimination Tribunal in Hobbs v Anglo Coal where an honest belief that health and safety required a worker's exclusion was found to be insufficient; and Gray v Queensland Rail where a decision to retire an injured driver was found to have failed to take into account possible reasonable adjustment including rehabilitation and provision of assistance. For comparison see Parker v North Queensland Animal Refuge: OH&S defence to discrimination claim upheld)
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 particular disability opportunities to meet their special needs in relation to employment and other areas.
Can you give some examples of the application of the DDA to employment issues?
The examples which follow are intended to illustrate how, in the Commission's opinion, rights and responsibilities under the DDA apply in employment. Note that the examples given of reasonable adjustments are examples only: a different adjustment may be required, or may be sufficient, depending on the circumstances.
Arrangements made for the purpose of determining who should be offered employment
Advertising
Direct discrimination
Advertising for "able bodied" applicants will be discriminatory unless, in an exceptional case, not having any physical disability can be shown to be an inherent requirement.
Indirect discrimination
A government department discriminates if it advertises internal vacancies only in print if it could reasonably have made other formats available, by electronic or other means.
But a corner shop which has no reasonably available means of advertising other than a sign in the window does not discriminate unlawfully by using such a sign to advertise a job.
Reasonable adjustment
An employer sends an enlarged text of its newspaper advertisement to a person who cannot read the published text.
Provision of job information
Direct discrimination
A person who requests job information is discriminated against if she is refused information, or provided with less information, because of the way her disability makes her look or speak or because of assumptions that she would not be able to do the job because of the disability.
Indirect discrimination
Discrimination may be found if job information is available only from a physically inaccessible venue or in an inaccessible form when access could reasonably have been provided.
Reasonable adjustment
An employer explains what a particular job requirement means to a person whose intellectual or learning disability causes him to have difficulty in this respect.
Harassment
A person with a disability is harassed if she or she is ridiculed because of, or in relation to, the disability for seeking information about a particular job. This harassment is unlawful whether or not the person could in fact have performed the job.
But advice reasonably intended only to make a person aware of the requirements of a job and the prospects of getting it is not harassment even if it causes humiliation.
Application forms
Direct discrimination
Requiring applicants with a disability to provide information which other applicants are not required to provide may be found to be discriminatory, unless the information is required to determine the person's ability to perform the inherent requirements of the job or unless the situation is covered by one of the other exceptions provided in the DDA.
Indirect discrimination
Requiring all applicants to fill out a long and complex written application may have a disadvantageous effect on applicants with intellectual or learning disabilities or other disabilities affecting reading. This requirement may be found to be unreasonable unless the job itself requires an ability to deal with complex documents.
A routine question about disability in an application form, such as "have you ever had a mental illness", may have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it will be discriminatory, unless the question is reasonable or is covered by one of the exceptions discussed in these questions and answers.
Questions which may be reasonable and permitted at interview, for example to examine whether a person's disability affects his or her ability to perform the inherent requirements of the job or to determine whether reasonable adjustment is required and possible, are not necessarily reasonable or permitted in an application form.
Reasonable adjustment
An employer who uses a standard written application form provides another more appropriate format for applications on request if this can be done without unjustifiable hardship.
Interview arrangements
Direct discrimination
An employer or an agent acting on behalf of an employer discriminates if he or she decides not to interview a job applicant because of the applicant's disability.
Indirect discrimination
Discrimination may occur if interviews are held in an inaccessible venue when the employer or recruiting agency was aware or reasonably should have been aware of the need for an accessible venue and an accessible venue could be arranged without unjustifiable hardship. See for example the decision of the Commission in W v P Pty Ltd . The Commission held that the arrangement of an interview in an inaccessible building that had sixteen steps, despite the complainant informing the respondent of her inability to access such a building, was unlawfully discriminatory. It awarded $2,130 damages
Reasonable adjustment
If all applicants are provided with interview questions in writing 20 minutes in advance, a reasonable adjustment to provide a blind applicant with equal opportunity could be having someone read the questions out.
Harassment
Harassment may be found to have occurred in an interview when an applicant is asked personal questions about his or her disability which are humiliating or offensive and which are not reasonably related to the inherent requirements of the job or are not for other permitted purposes such as making reasonable adjustments. Harrassment may be found even if the purpose of the question was not to harass but simple curiosity. For example, "Can you still have sex when you have that disability?" would be an unacceptable question in most situations.
Selection tests
Direct discrimination
Discrimination is likely to be found if applicants are asked whether they have or have had a disability and are excluded or disadvantaged if they answer yes.
Indirect discrimination
Discrimination may occur if the tests or examinations used do not measure accurately the actual ability of an individual to perform job functions, rather than reflecting the effect of a disability on ability to perform the test in the form and format given.
For example, discrimination may occur if applicants are required to complete a lengthy written test for a job in which literacy skills are not part of the job.
Reasonable adjustment
Some applicants may need extra time or assistance in completing a written test.
Medical examinations
Direct discrimination
Discrimination may occur when applicants who are identified as having a disability are excluded when the disability would not in fact have prevented them performing the inherent requirements of the job.
But it is not discrimination to exclude a person whose disability in fact prevents him or her performing the inherent requirements of the job. For example, a person with severe penicillin allergy may be unable to work in a pharmaceutical packing factory.
Indirect discrimination
Discrimination may occur if applicants are required to meet a particular physical requirement which disproportionately excludes people with a disability, where this requirement is not in fact reasonable or part of the inherent requirements of the job.
Determining who should be offered employment
Direct discrimination
Discrimination may occur if
- a person is not selected for a position because of an incorrect assumption that his or her disability will prevent performance of job requirements
- a person is not selected for a position because of an incorrect assumption that his or her responsibilities as carer for a person with a disability will prevent performance of job requirements
- a person with some disfigurement or other visible disability is not selected, because of concerns about possible reactions by customers or co-workers
- a person who is HIV positive is not selected because of health and safety concerns which are not well founded in the circumstances
- applicants who have used sick leave or workers compensation entitlements in previous employment are excluded - employers should consider whether the person is presently able to perform the job safely, including with any reasonable adjustments necessary being provided, rather than basing decisions solely on past history of disability.
Indirect discrimination
Discrimination may occur if
- applicants without a driver's licence are not selected, when driving is not an inherent or reasonable requirement of the job
- applicants with tertiary educational qualifications are preferred, when such qualifications are not reasonably required - unequal educational opportunities may mean that people with a disability are disproportionately less able to meet such a requirement
- applicants with previous experience or a particular type or duration of experience are preferred when the employer's own previous failure to offer equal opportunity has contributed to fewer people with a disability being able to satisfy this requirement
- applicants are preferred who do not require reasonable adjustments - in some circumstances this might also constitute direct discrimination.
Terms or conditions offered or afforded
Wages, salary or other payments
Direct discrimination
Discrimination may occur if people with a disability are not given equal pay for work of equal value.
Indirect discrimination
Discrimination may occur if higher rewards are unreasonably applied to duties which people with a disability are not given.
Duties performed
Direct discrimination
Discrimination may occur if, because of disability, a person is assigned to duties within a job which are
- less rewarding, financially or personally
- less conducive to career development or
- more unpleasant or onerous.
But assignment of a person with a disability to different duties is not discrimination where required by the inherent requirements of the job or where reasonably intended as a means of providing equal opportunity.
Indirect discrimination
Discrimination may occur if more desirable duties are not available to people with a disability because reasonable adjustments have not been made to make performance of these duties possible.
Performance requirements
Direct discrimination
Discrimination may be found if a person with a disability or history of disability is subjected to more demanding performance requirements or productivity measurement than other workers.
Indirect discrimination
Discrimination may be found if uniform performance requirements are applied without reasonable adjustments being made in equipment or working methods to permit a person with a disability to meet these requirements.
Conduct and attendance requirements
Direct discrimination
Discrimination may be found if a person with a disability is punished for behaviour which is tolerated in other workers.
Indirect discrimination
Discrimination may occur if requirements, for example in relation to unannounced absence from work, are applied which are unreasonable, or are applied unreasonably. But requirements which are justified by inherent job requirements or are otherwise reasonable and are applied reasonably are not discriminatory.
Reasonable adjustment
Reasonable adjustments might include
- providing flexible working hours, including number and timing of work breaks as well as starting and finishing times
- allowing an employee to work some hours at home where the nature of work and work organisation permits this.
Occupational health and safety protection
Direct discrimination
Discrimination may occur where people with a disability are
- excluded from a work activity because of perceived health or safety risks when these are not substantial or could have been addressed by reasonable adjustment in working methods or equipment
- assigned to more hazardous duties.
Indirect discrimination
Discrimination may be found where people with a disability are afforded less effective protection of health and safety because of
- failure to make information and training equally accessible including in format or comprehensibility
- presence or use of materials such as slippery floor surfaces which present particular risks to some employees with a disability and which could have been not used or removed without unjustifiable hardship
- failure to make reasonable adjustments required, for example, to provide appropriate training and make safety equipment equally useable.
Reasonable adjustment
Examples of reasonable adjustment to ensure that workers with a disability can work safely might include
- providing modified safety equipment or additional training
- allowing a welder with a vision impairment to use his or her personal safety goggles with prescription lenses at work rather than requiring him or her to wear the safety goggles provided by the company.
Equipment and facilities provided
Direct discrimination
Discrimination may be found where an employee with a disability is not permitted access to equipment or facilities provided to other employees.
Indirect discrimination
Discrimination may occur where
- computer software systems are not designed to be equally accessible to and useable by employees with vision impairments
- reasonable adjustments are not made to work equipment to permit equally effective use by an employee with a disability - for example, modifications or alternatives to keyboards for computer input
- work premises, including facilities such as washrooms, kitchens and recreational areas, are not made accessible where this could have been done without unjustifiable hardship.
Reasonable adjustment
Depending on the circumstances of the employer, the requirements of the employee and considerations of what would be unjustifiable hardship, examples of appropriate adjustments to work premises, facilities and equipment might include
- providing synthetic speech output on a computer for an employee with a vision impairment
- providing voice input on a computer for an employee with restricted hand function or vision impairment
- installing a ramp to allow an employee using a wheelchair access to work premises and facilities provided for employees such as washroom and lunch facilities
- improving the lighting at a workstation for an employee with low vision
- providing a hand rail on a long corridor for an employee with multiple sclerosis
- providing an employee with diabetes some private space for injecting insulin, such as a sick room or empty office
- providing a two-drawer rather than four-drawer filing cabinet so that an employee who uses a wheelchair can reach all material.
Information and communication on work-related issues
Direct discrimination
Discrimination may be found where employees with a disability are not given information about a work issue, such as a training opportunity, whether this is because of assumptions that they would not be interested or because of a more conscious decision to exclude them (which may also constitute harassment).
Indirect discrimination
Discrimination may occur where information and communication is not made reasonably accessible to employees with a disability affecting communication. For example
- important information circulated by e-mail is provided only in graphics form inaccessible to employees using screen readers and braille or audio output technology
- emergency announcements or alarms are provided only in one format, visual or audible, rather than both
- important instructions or information materials are provided only in the form of complex documents without explanatory assistance being available to employees whose disability involves comprehension difficulties.
Reasonable adjustment
Reasonable adjustments might include
- developing plain language instructions to explain how to do the job for an employee with an intellectual disability
- giving instructions and asking for information both in writing and verbally when communicating with an employee with an acquired brain injury.
Work environment
Direct discrimination
Discrimination may occur where employees with a disability are subjected to a hostile working environment through actions of other employees, customers or others and the employer fails to take reasonable measures to protect against this.
Indirect discrimination
Discrimination may be found where negative comments are routinely made about commitment of employees who do not work overtime, which some employees with a disability or who are carers find more difficult to do.
Supervisory and management arrangements
Direct discrimination
If a person with a disability is subjected to closer supervision than other similarly situated workers, this may be found to be less favourable treatment.
But additional supervision or management attention which is reasonably intended to provide equal opportunity, for example by determining needs for reasonable adjustment or to assess or improve an employee's performance of inherent job requirements, is not discriminatory.
Reasonable adjustment
Reasonable adjustment might include allowing a Job Support Worker to visit an employee with a moderate intellectual disability at work to provide him or her with informal support.
Leave entitlements
Direct discrimination
Discrimination may be found if the partner of an HIV positive person is refused leave available to other employees for family illness or bereavement.
Indirect discrimination
Discrimination may be found if an employee with psychiatric or other recurring illness is unreasonably required to comply with a general rule requiring advance notice for recreation leave, preventing use of this leave to supplement sick leave entitlements.
But in some circumstances applying such a rule will be reasonable having regard to work requirements and therefore it will not always be discriminatory.
Superannuation entitlements
Discrimination may occur if, because of disability, an employee is
- excluded from superannuation coverage
- afforded more limited superannuation entitlements
- required to make higher contributions to receive the same entitlements
where the different treatment cannot be shown to be reasonable on the basis of relevant actuarial or other evidence.
For example, discrimination may occur if an employee with a disability is provided with less advantageous entitlements regarding early retirement even where the retirement is for reasons unrelated to the disability such as unrelated accident or illness.
Opportunities for promotion, transfer or training
Direct discrimination
Discrimination occurs if an employee with a disability is not given equal consideration for promotion or included equally in training opportunities because of inaccurate assumptions based on his or her disability.
Indirect discrimination
Discrimination may be found if
- an employer uses external training facilities which do not provide for equal access and participation by an employee with a disability
- promotion or training opportunities are unreasonably restricted to employees in areas with lower proportions of people with a disability.
Any other benefits associated with employment
Direct discrimination
Discrimination may be found if
- because of his or her disability an employee is not invited to an employer sponsored social activity.
- employees with a disability are provided with less favourable options than other employees in relation to voluntary redundancies.
Indirect discrimination
Discrimination may be found if:
- employees are provided with company cars as part of their salary package but no comparable alternative is provided to employees who cannot drive because of disability
- employer sponsored social activities are conducted in inaccessible premises, when an accessible venue could have been used without unjustifiable hardship.
Dismissal, or other termination of employment
Direct discrimination
Discrimination may be found if
- an employee is dismissed because of an incorrect view that his or her disability prevents performance of the inherent requirements of the job
- an employee with a disability is dismissed as the means of resolving workplace conflict related to the disability
- employees with a disability are selected for enforced redundancy ahead of other employees.
It is not discrimination under the DDA to dismiss an employee who cannot in fact perform the inherent requirements of the job. In a number of cases the Commission has found no unlawful discrimination under the DDA where an employee has been dismissed who, because of illness or accident, is unable to return to his or her full previous duties. (These decisions have been decisions by the Commissioner to decline complaints and decisions by the President to uphold such decisions. These decisions are not published but summaries are available on the Commission s internet site.)
Employers should note however that they may have additional obligations under industrial relations law, State or Territory anti-discrimination law or workers' compensation law, including regarding possible redeployment to other duties, which should also be considered before dismissing an employee.
Indirect discrimination
Discrimination occurs if an employee with a disability is dismissed for non-compliance with a rule which is not reasonable and which people with that disability are less able to comply with than other employees.
But unlawful discrimination will not be found if dismissal is for non-compliance with a rule found to be reasonable.
For example: A casual worker complained that she had been discriminated against when she was not offered further shifts by a packing company after failing to attend a number of shifts on time or at all due to illness. The Commissioner declined the complaint. He noted that no medical evidence of disability or illness had been provided to the employer and that no advance notice had been provided of intended late arrival for work. He found that there was no direct discrimination since any less favourable treatment was because of attendance rather than directly because of disability. Regarding indirect discrimination, he did not consider that the requirement for reliable attendance in peak work periods had been shown to be unreasonable in the circumstances. He therefore found no unlawful act. Note that this result was reached without having to consider whether the attendance requirement was an inherent requirement. (1999).
Are there any standards under the D.D.A. on employment?
No. Consultation on draft versions of Disability Standards on employment was conducted in 1996 and in 1997-98 but no Standards are in force. These questions and answers are not regulations or standards. They represent the Commission's opinion on the meaning and application of the existing provisions of the D.D.A. They seek to take into account relevant court decisions and the Commission's decisions on complaints. Some of these decisions are referred to throughout this F.A.Q. See also the decisions page on this site.
Are people with disabilities disadvantaged in employment in Australia?
Comprehensive employment statistics for people with disabilities are not available. However, an Australian Bureau of Statistics study in 1998 found that:
- people of working age (15-64 years) with a disability had a much lower rate of labour force participation (50%) than those without a disability (80%).
- the median gross weekly income of people with a disability ($190) was less than half that of people without a disability ($390).
- more than half (58%) of people with a disability were reliant on a government pension or benefit as their main source of income.