Please note: The information provided is a guide only. Employers should obtain legal advice if they have specific questions about their obligations under disability discrimination legislation.
The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person because of their disability. The Act also covers people who are relatives, friends, and carers of people with a disability.
Direct disability discrimination happens when a person with a disability is treated less favourably than a person without a disability would be treated in the same or similar circumstances.
Discrimination also happens when there is a requirement or condition or practice that is the same for everyone but has an unfair effect on a particular group of people. This is known as indirect discrimination. For example, requiring a deaf employee to attend meetings where no Auslan interpreter is provided to enable them to understand what is being said could be indirect discrimination.
The DDA states that in some circumstances it is not unlawful to discriminate against a person with a disability. For example, where a person cannot perform the inherent requirements of a job it is not unlawful for an employer to not employ the person. However, the employer has to have considered whether the person could perform the requirements of the job with 'reasonable adjustment' for the disability.
For example, could a person with vision impairment perform a clerical job with voice-activated software? If it would impose an 'unjustifiable hardship' on the employer to provide the reasonable adjustment, it may not be unlawful discrimination. Or if the employer was a small business and had to put a lift in to make the workplace accessible, it might impose an unjustifiable hardship.
Employers should choose the best person for the job, whether or not that person has a disability. They should make this decision based on a person's ability to perform the essential activities of the job, not on assumptions about what a person can or cannot do because of a disability.
This means that if a person with a disability can do the essential activities or 'inherent requirements' of a job, he or she should have just as much chance to do that job as anyone else. For example, an essential activity or 'inherent requirement' for a telephonist's job is the ability to communicate by telephone, but it is not an 'inherent requirement' to hold the phone in the hand.
The DDA makes it unlawful to discriminate against people with disabilities in employment, including:
The DDA also covers contract work and membership of partnerships of three or more people, as well as discrimination by:
For example, it is unlawful for an employment agency not to refer a person with a disability to a job if he or she can do the job.
If a person with a disability is the best person for the job then the employer must make workplace changes or 'workplace adjustments' if that person needs them to perform the essential activities of the job. In most cases the person with a disability will be able to tell the employer what is needed. If necessary, employers should also seek advice from government agencies or organisations which represent or provide services to people with a disability.
Examples of 'workplace adjustments' employers may need to make include:
The DDA does not require workplace changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called 'unjustifiable hardship'. Before claiming that adjustments are unjustified, employers need to:
If making these adjustments would cause hardship it is up to the employer to show that they are unjustified.
The DDA makes it unlawful for harassment in relation to a disability, or based upon a relative or associate having a disability. Examples of harassment on disability grounds include:
