The Disability Discrimination Act (DDA) protects every Australian from discrimination based on disability, and is administered by the Australian Human Rights Commission (AHRC). The DDA defines disability in broad terms, and identifies discrimination as when someone is treated less favourably (directly or indirectly) because they have a disability, or because they are a friend, relative, colleague, carer or associate of a person with a disability.
Under the DDA, it is unlawful to discriminate against a person throughout all stages of employment: recruitment (including application, interview and selection); terms and conditions of employment (hours and pay, leave entitlements); promotion; benefits; training; termination of employment, redundancy and demotion.
Types of discrimination
Direct discrimination occurs when someone is explicitly denied equal opportunity:
“We don’t employ disabled people here”
Indirect discrimination occurs when a condition or requirement has a more severe impact on someone with a disability, and this is not reasonable:
All staff members are required to climb stairs, when the use of ramps or lifts would not result in unjustifiable hardship for the employer.
The DDA emphasises equitable employment opportunities: this
means that to be fair is to be flexible about how things are done in the workplace. Treating everyone in exactly the same way does not mean that everyone will have an equal opportunity to perform to their potential. Sometimes, equitable treatment requires employers to make adjustments or accommodations to workplace practices, equipment or job design. These might be straightforward and inexpensive, and will often benefit the workplace as a whole, by making it better organised, more inclusive and better able to provide a quality service to the client.
The DDA does not require employees’ needs to be accommodated when this would result in “unjustifiable hardship”. All relevant circumstances have to be considered, including the:
- Nature of the benefit or detriment likely to result for all persons concerned
- Financial circumstances and the estimated amount of expenditure required by the person claiming unjustifiable hardship
What is a reasonable accommodation and what is unjustifiable hardship must be worked out on a case-by-case basis.
Inherent job requirements
Inherent job requirements are the tasks that must be carried out in order to get the job done, and are used to determine equitable employment opportunities. If a person can carry out the inherent requirements of a particular position, they should have equal opportunity to do so.
Inherent job requirements are fixed; the means by which they are met, however, are not. For many people, having a disability does not impact on their ability to do the inherent requirements of a job, but if necessary, you can consult with them to establish alternative ways to achieve the required outcome.
An employee is required to record the minutes from meetings. They have a physical disability that prevents them from taking shorthand, but they are able to take information on a Dictaphone and then transcribe. Taking shorthand is therefore not an inherent requirement of the job because the job can be done another way.
The DDA does not require that everyone is eligible for every job: if the inherent requirements cannot be met once reasonable adjustments are made, employment cannot take place.
Disclosure
Potential and current employees are not legally required to disclose a disability, unless it will affect their ability to carry out the inherent requirements of the job. If an employee does disclose, you have a legal obligation to protect their privacy. An employer can ask questions about disability when this is not for the purposes of unlawful discrimination. For instance, it is not unlawful to ask an employee what accommodations they need to carry out the inherent requirements of the job.