Revised draft DDA Disability Standards: Employment
NOTE: These draft Standards are not currently in force. See also the Commission s own Employment Frequently Asked Questions which deal with the existing provisions of the DDA.
This revised draft of possible Disability Standards under the Disability Discrimination Act regarding employment is issued by the Disability Standards Sub-Committee of the National Committee on Discrimination in Employment and Occupation.
The Sub-Committee is made up of the representatives from the National Coalition for Development of Disability Standards, the Australian Chamber of Commerce and Industry, the Australian Council of Trade Unions, the Council for Equal Opportunity in Employment, the Victorian Equal Opportunity Commission, the Disability Discrimination Commissioner, and the Federal Government through the Department of Employment, Education, Training and Youth Affairs, the Department of Workplace Relations and Small Business and the Attorney General's Department.
The Sub-Committee issued a first draft of Disability Standards in this area in August 1996 for consultation. At the request of the disability community representatives the date for responses was extended from the end of November 1997 to the end of February 1997.
This revised draft has been prepared by the Commission on behalf of the Sub-Committee taking into account the issues raised by submissions in response to the initial draft.
Copies of this document in print or other formats may be obtained by writing to:
Mr
Kym Duggan
Attorney-General's Department
Robert Garran Offices
Barton A.C.T. 2600
Comments in response to this revised draft are requested by 15 March 1998. They may be addressed to:
Disability
Discrimination Commissioner
GPO Box 5218
Sydney 2001
or by e-mail to the Disability Discrimination Policy Unit
Part A: What are Employment Standards?
1. The DDA
The Disability Discrimination Act 1992 (Cth) (the "DDA") aims as far as possible to remove barriers preventing people with disabilities participating equally in all areas of life. Section 31 of the DDA allows the Federal Attorney-General to make disability standards about employment. The Attorney-General makes these Standards under that power and may review them within 5 years of being approved or given effect by the Federal Parliament.
These Standards are about removing discrimination from employment and do not deal with other aspects of discrimination such as providing goods and services to the public in a nondiscriminatory way.
As an employer you may also have responsibilities under other laws including:
- State and Territory laws about discrimination;
- laws about rehabilitating or compensating employees following an injury or illness;
- laws protecting the health and safety of employees; and
- unfair dismissal laws.
If you are an employer and do not comply with these Standards you will be acting unlawfully under the DDA. If you do comply, you may use your compliance as a defence if an employee makes a complaint of disability discrimination against you.
2. Purpose and Interpretation
2.1 Purpose
These Standards are to assist employers in complying with the DDA. Their purpose is to:
- explain rights and responsibilities;
- clarify key concepts for making decisions under the DDA, such as discrimination, harassment, inherent requirements of the job, appropriate adjustments and unjustifiable hardship;
- provide greater certainty for resolving workplace disputes;
- explain factors that courts and tribunals will take into account in deciding a complaint about disability discrimination in employment; and
- explain how the DDA relates to other laws regulating employment.
2.2 Interpretation
All words and phrases have the same meaning as in the DDA. If a meaning is unclear it must be interpreted in a way that is consistent with the objects of the DDA. The objects are to remove, as far as possible, barriers preventing people with disabilities from participating as equal citizens in all areas of life.
This document is written in the first person to make it easier to read. The word "you" refers to employers. The word "employee" means employee and, where appropriate, independent contractors and someone who is applying for a job.
3. Who must comply?
3.1 Employers
(a) These Standards apply if you are an employer except where you are employing someone to do domestic duties in your home.
(b) As an employer, you can also be liable for the actions of someone who is your agent. At general law an agent is someone acting on your behalf. Most commonly this will be your employees. Depending on the circumstances however, your agent might be someone else such as an independent contractor or employment agency.
You can be liable for someone acting as your agent if you instruct, induce or aid them to breach these Standards. To avoid liability you should take all reasonable steps to encourage anyone who might be your agent to comply with these Standards. If you can show diligence you will not be liable for an agent ignoring your efforts and going on a "frolic of their own".
For example:
- You are an employer in a large business and provide all employees with training and written guidelines about employing people with disabilities. This includes clear policy about not asking unlawful questions in interviews. In spite of this training, an employee conducting an interview asks very personal and offensive questions about a job applicant's disability. The questions are totally unnecessary for working out if the applicant needs any appropriate adjustments. In these circumstances, although the employee would ordinarily be your agent, you would not be liable because they had taken it upon themselves to ask such questions in spite of your efforts.
- You have a policy against unlawful harassment which is known to all employees. An employee knowing of the policy decides to harass a co-worker with a disability. You would not be liable for the unlawful harassment. However, you might be held liable if you knew or should have known about and done something to stop an employee systematically harassing a co-worker with a disability.
3.2 Co-workers
Employees also have obligations under these Standards and must not harass any co-worker with a disability.
4. Who is protected?
4.1 People with disabilities as employees or potential employees:
These Standards are about the rights of any person with a disability who is:
- an employee;
- an independent contractor; or
- is applying for a job as an employee or independent contractor.
They do not apply to anyone who is a commission agent or partner, or to a carer or associate of a person with a disability. These people have separate rights relating to employment which are found in the following sections of the DDA:
- commission agents (Section 16 and 35);
- partnerships (Section 18); and
- carers or associates of a person with a disability (Sections 15 -21 and 36).
4.2 Who is a person with a disability?
A person with a disability under the DDA has a very broad meaning. It includes someone with more than one disability or who has total or partial disability. These Standards cover the following areas of disability:
- physical
- intellectual
- psychiatric
- sensory
- neurological
- learning disabilities
- physical disfigurement, and
- the presence in the body of disease causing organisms.
Disability also includes anyone who:
- currently has a disability;
- has had a disability in the past (for example, a past episode of mental illness);
- may have a disability in the future (for example, a family history of a disability which a person may develop in the future); or
- is imputed as having a disability (for example, a person is thought to have HIV/AIDS).
Unlawful disability discrimination includes discriminating against employees because they:
- use a palliative or therapeutic device or an auxiliary aid (such as a wheelchair or hearing aid);
- are accompanied by an interpreter, reader, assistant, or carer or
- are accompanied by a guide dog, hearing dog, or other appropriately trained animal to assist in the alleviation of the effect of a disability.
PART B: Rights and Obligations
5. What are my obligations as an employer?
5.1 Removing Discrimination
Removing discrimination under the DDA requires employers to:
- make appropriate adjustments for employees if required; and
- not discriminate against or harass any employee with a disability.
5.2 When do an employer's obligations arise?
Your obligations under these Standards apply to all situations where you are employing a person with a disability. These include:
(a) arranging to recruit
For example: advertisements, provision of job information, application forms, interviews, selection tests, examinations and other inquiries
(b) selecting an employee
For example: post interview selection processes such as interview reports and medical examinations
(c) the terms and conditions of the job
For example:
- wages, salary and other payments,
- the job description,
- performance, conduct and attendance requirements
- occupational health and safety protection
- equipment and facilities
- information and communication on work-related issues
- work environment
- supervision and management arrangements
- entitlements such as leave and superannuation entitlements
- workers compensation arrangements
(d) opportunities for promotion, transfer or training - both inside and outside the workplace
(e) other employee benefits - such as use of recreational facilities
(f) dismissing or otherwise terminating employment
(g) disclosing information about the employee to any other person or organisation.
6. Inherent Requirements
6.1 What are the Inherent Requirements of a job?
For every job there are abilities and qualifications that are fundamental. The DDA calls these the inherent requirements. It recognises that as an employer you can decide the nature of the job that you want an employee to do, as long as you comply with all applicable laws, awards, collective or individual agreements. This includes:
- the tasks or functions that are a necessary part of the job;
- the abilities and attributes required for the job;
- the ability to work effectively in a team or the type of work organisation;
- productivity and quality requirements;
- the ability to work safely; and
- relevant market and customer requirements and industrial circumstances.
The DDA also recognises that the rights of an employer must be balanced with the rights of a person with a disability to be employed if they can do the job. This means that you are not allowed to base job criteria on discriminatory attitudes of customers, other employees or anyone else.
If an employee makes a complaint about disability discrimination a relevant court or tribunal may have to assess the inherent requirements of the job. If this happens your views as an employer will be treated as highly relevant, and other peoples' opinions may also be taken into account.
6.2 How do you assess the inherent requirements?
This involves two questions of fact :
- What is the job?
- What are the inherent requirements of the job?
Sometimes the actual job in practice may be different from the description on paper. The inherent requirements are those aspects of the job that occur in reality.
Relevant factors may include:
the work you require other employees to perform in the same or comparable positions
For example : A requirement in a duty statement but not applied in practice would not be part of the inherent requirements of the job
evidence of additional duties you may require the employee to perform in an emergency or at periods of high workload
For example:
- The ability to assist passengers in an emergency would be part of the inherent requirements of the job for airline cabin crews even if the staff of the particular airline have never had to perform this function in an accident.
- The ability to lift and carry an unconscious person out of a burning building is an inherent requirement of the job of a fireman, even if some firemen never have to do this.
whether a different requirement could achieve the same result
For example: A requirement to use a particular method for doing a job will not be an inherent requirement if the employee can produce the same result with an appropriate adjustment, so long as the different work method does not cause unjustifiable hardship.
the circumstances in which you require the work to be performed
For example: The circumstances for one job will not necessarily be the inherent requirements of another job involving the same tasks but different circumstances.
the terms of any award, agreement or competency standards applying to the job
For example:Awards and agreements may be relevant to deciding parts of the inherent requirements of a job but should not be seen as conclusively prescribing all the inherent requirements of the job.
the duty statement
For example:If a duty statement exists it will not necessarily be conclusive evidence of the inherent requirements of the job. It has been held that a requirement that was not contained in a duty statement can still be an inherent requirement of the job.
any other laws that may affect the mandatory requirements or qualifications for the job.
Note: The DDA prevails over:
- any earlier discriminatory State, Territory or Federal law; and
- any later inconsistent State or Territory law.
The exception is where the earlier State, Territory or Federal law has been prescribed under DDA (section 47(2)). To date there have been no laws prescribed in this way.
7. Appropriate Adjustments
7.1 What are they?
A person with a disability may be able to do the job without any adjustments. Sometimes, however, they will need you to make appropriate adjustments. This involves providing your employee with services and/or facilities to make sure that they have equal opportunity in the workplace. The types of adjustments that are appropriate will vary depending on the individual requirements of the employee and other relevant circumstances.
Appropriate adjustments are workplace adjustments that do not cause unjustifiable hardship and are made for the following purposes:
- providing an employee with a disability with equal opportunities to be considered on merit for selection, appointment, promotion, transfer or training;
- enabling the employee to perform the inherent requirements of the job;
- enabling the employee to perform other requirements related to the job;
- enabling the employee to enjoy equal employment terms and conditions with other employees in comparable circumstances; and
- enabling the employee to participate in and benefit from work related facilities, programs or benefits on equal terms with your other employees.
7.2 When do employers have to make appropriate adjustments?
You must make appropriate adjustments for an employee as soon as practicable if:
- you are aware that the employee requires appropriate adjustments;
- you are able to make them; and
- it is possible for you to make them within a period of time that is reasonable in the circumstances.
This does not mean that you can refuse to employ, or can dismiss, a person with a disability just because an appropriate adjustment cannot be made immediately.
You will be taken to be aware that an employee requires an adjustment if it would be reasonable to expect you as an employer to be aware. What is reasonable will depend on the circumstances.
For example: Many people with reading disabilities are functionally illiterate. This may not be obvious at a job interview. It would be unreasonable to expect you to know that a job applicant is functionally illiterate and might require adjustments if the applicant does not disclose this.
7.3 Inquiries
As an employer, you are expected to make inquiries to find out if an employee needs you to make an appropriate adjustment and whether it is possible for you to make it.
This will involve you:
- making inquiries of the person with a disability;
- seeking out all information and advice that is reasonably available to you about effective equipment and methods of adjustment; and
- making all other inquiries which it would be reasonable for you to make in the circumstances.
The employee is under an obligation to assist by providing you with all relevant information.
7.4 Types of Inquiries
(a) Employee information
An employee with a disability will often have expertise in the types of adjustment or accommodation appropriate for them. You must consider any information they provide about their preferences and the effectiveness of proposed adjustments.
You do not have to provide them with their preferred adjustment if:
- another adjustment would be equally effective in achieving the purpose, or
- making the preferred adjustment would cause unjustifiable hardship.
For example: An employee with a psychiatric disability asks you to provide a separate office because the noise and bustle of an open plan leads to panic attacks. There is no spare office space and complying with the request would mean rearranging the whole office space and doing some building work. You approach a job support agency for people with psychiatric disabilities. The agency advises you to move the employee's work space from the centre of the room to a corner and to install a second hand 6 foot high movable partition. The agency also provides the employee with support for a limited time to ensure that the adjustment works.
An employee who is deaf requests a TTY with a printer. The inherent requirements of the job do not require the employee to take lengthy detailed messages. An ordinary TTY without a printer will be as effective for half the cost. Here the appropriate adjustment would be to provide the less expensive TTY.
(b) Other sources
If an employee:
- does not know what would be an appropriate adjustment; or
- fails to advise you of an appropriate adjustment,
you can rely on other sources of information or advice so long as this is reasonable in the circumstances. These can include:
- organisations representing, or providing services to, people with particular disabilities;
- relevant government agencies;
- employer associations;
- other employers who have addressed issues of reasonable adjustment and equal opportunity for people with a disability;
- trade unions;
- specialist employment agencies; and
- publicly available information resources (for example, it may be useful to consult resources available on the Internet).
7.5 Examples of appropriate adjustments
The types of adjustments that are appropriate will depend on the individual circumstances of your organisation, the requirements of the employee and considerations of what would be unjustifiable hardship. Depending on these circumstances the following are examples of appropriate adjustments:
(a) Physically adjusting the workplace or work related premises
For example:
- Installing a ramp to allow an employee using a wheelchair access to your premises, the lunch room, cafeteria and toilet facilities.
- Asking cleaners to use non-toxic cleaning fluids to reduce the risk of aggravating the condition of an employee with chemical trauma.
- 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.
(b) Adjusting existing workplace equipment and facilities or providing additional equipment and facilities
For example:
- Providing synthetic speech output on a computer for an employee with a vision impairment.
- Allowing an employee with diabetes some privacy when they need to inject insulin, such as a sick room or empty office (but not a toilet).
- Providing two two-draw filing cabinets rather than one four-drawer cabinet so that an employee who uses a wheelchair can reach all material.
(c) Adjusting work related communications or ways of providing information
For example:
- Providing an accredited Auslan interpreter to enable a deaf employee to attend a meeting or the official office Christmas function.
- Providing staff newsletters and policy documents on disc for an employee with vision impairment.
(d) Adjusting work methods
For example:
- In a retail situation where there are several staff, tasks could be divided rather than requiring all employees to rotate duties regularly. An employee with a mobility disability might be allocated the job of operating the cash register while other employees provide customers with individual service.
- 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.
(e) Adjusting work arrangements
For example, providing flexible working hours and use of leave entitlements to:
- Allow an employee who has restricted mobility and is in pain to worksome hours at home provided that attendance at the work place is not essential or highly desirable because of the nature of the work to be done.
- Allow an employee to attend appointments with a medical specialist within ordinary working hours by making up the hours lost at a later time or by using annual leave or unpaid leave entitlements.
- Allow an employee with a psychiatric disability to travel up the day before a meeting and stay overnight rather than expecting them to catch a 6 am same day flight.
(f) Adjusting the methods that you use for testing, assessing or selecting employees
For example:
- Allowing an applicant with cerebral palsy longer time to complete a test.
- Considering whether you really require an employee to have a current driving licence or if allowing an employee who cannot drive because of epilepsy to use a taxi or other mode of transport would be as effective.
(g) Providing employees with training, interpreters, readers, attendants or other work related assistance
For example:
- Providing one-to-one training for an employee with a social phobia.
- Conducting training and awareness sessions for all employees to educate them on communication, and other, issues concerning working with a co-worker with a disability.
(h) Permitting or facilitating employees to use equipment or assistance that they provide or that is provided to them by another person or organisation.
For example:
- Allowing a welder with a vision impairment to use their personal safety goggles with prescription lenses at work rather than requiring them to wear the safety goggles provided by the company over their prescription glasses.
- Allowing a Job Support Worker to visit an employee with a moderate intellectual disability at work to provide them with informal support.
7.6 Limits
You do not have to make appropriate adjustments in the following circumstances.
(a) Changing the job
You do not have to make an adjustment for an employee if making it requires:
- changing the inherent requirements of the job;
- creating another job; or
- transferring the employee to a different job,
unless as part of a training or rehabilitation program for the purpose of enabling the person with a disability to perform the inherent requirements of the job within a reasonable period of time.
(b) Equipment for private use
The adjustment consists of equipment which the employee requires primarily for non-employment related use. This means equipment that is not part of the employee's daily function as an employee.
Example:You would have to provide an employee with low vision with improved lighting at their workstation but you would not have to provide them with special lighting in the canteen so that they can read a newspaper over lunch - even if this is common practice for all other employees.
(c) Unaware
You could not reasonably have been aware in the circumstances they were required or possible; (discussed in 7.2 )
(d) Unjustifiable hardship
Making the adjustment would impose unjustifiable hardship (discussed next).
8. Unjustifiable Hardship
8.1 An exception
The DDA contains an exception that you do not have to make an appropriate adjustment if it would cause unjustifiable hardship. Because it is an exception an employee making a request for an appropriate adjustment does not have to show that the request will not cause hardship. If you wish to decline making the adjustment you must show that considering all the relevant circumstances it will cause unjustifiable hardship.
8.2 What does it mean?
To understand the term "unjustifiable hardship" you must have regard to the objects of the DDA, particularly the object of removing disability discrimination as far as possible. It is also important to note that even though making an adjustment may require some effort this does not necessarily amount to unjustifiable hardship.
The DDA states that all relevant circumstances of a particular case are to be taken into account to decide whether an employer can successfully claim unjustifiable hardship. These include:
- the effect of the disability of the employee;
- any future benefits or detriments that are likely to occur to you, the employee with a disability, other employees, and customers if you make the adjustment;
- the financial circumstances and the estimated amount of expenditure required to be made by you; and
- where you are a provider of services or facilities, and have developed an action plan under the DDA, whether any terms of the action plan are relevant to you making the adjustment.
It is important to note however, that this list of issues is not exhaustive. Depending on the circumstances of an individual case there may be other relevant factors to take into account.
8.3 The effect of the disability of the person concerned
This issue means focussing specifically on the person with the disability and taking into account the current impacts and consequences that the disability has on them in the workplace.
8.4 Likely benefits
The DDA directs employers also look at any likely benefits that might arise from making the adjustment. This includes any benefits:
- to the employee with a disability of the adjustment providing equal opportunity and participation in the work place; and
- any benefits that making the adjustment might have for other employees or customers.
For example:
- Improving access for an employee with a mobility disability may also improve access for customers.
- Providing awareness training for all employees on issues concerning working with a co-worker with a disability may result in staff improving their awareness and communication skills in dealing with customers.
8.5 Financial circumstances
The fact that you may incur some cost in making an adjustment does not mean that you can claim unjustifiable hardship. Your consideration of costs must include the following factors.
(a) Net financial costs
The net costs often differ from the direct up-front costs that you might incur. Net costs include:
- all direct costs;
- any offsetting tax, subsidy or other financial benefits available for making the adjustment or employing the person with a disability;
- any indirect costs and/or benefits affecting the productivity of the particular job, other employees, and your enterprise;
- any increase or decrease in sales, revenue or effectiveness of customer service;
- how far an adjustment represents any additional cost above the cost of equipment or facilities that you are currently providing to any comparable employee without a disability;
- the extent to which the adjustment is required by other applicable laws, standards or agreements; and
- any relevant skills, abilities, training and experience of the employee seeking the adjustment.
For example: An employee requires an adjustment costing $1,000.00. They qualify for workers compensation rehabilitation entitlements. Therefore, the employer making the adjustment will be entitled to reclaim the full cost. The net financial cost of the adjustment would be nil and unjustifiable hardship would not apply.
(b) Can costs be met?
Determining whether unjustifiable hardship applies requires considering whether your financial position allows you to meet costs. Where your ability to meet the costs of an adjustment is in question, the following are the types of issues that you should consider:
the size of your enterprise, including net assets and number of employees
the amount of any subsidy or assistance that might be provided or that is potentially available for making the adjustment
For example: Any funding that might be available through workers compensation providers or government rehabilitation services.
any effect that the adjustment is reasonably likely to have on the financial viability of you and your organization or the viability of the particular job or the jobs of other employees.
For example:
- A small engineering business may be expected to bear the costs involved in overcoming a few steps to allow an employee with a mobility disability to get access from a workshop to the office or lunch room, but it would not be expected to bear the costs of installing a lift.
- A large bank may be expected to provide interpretation facilities for an employee with a sensory disability.
- An employer has two business premises side by side. One is a small cafe, and the other a specialist gallery. Each of the premises is accessible through their front doors but there is also a connecting doorway between which has six steps. The loss of floor space involved in installing a ramp would affect the viability of the art gallery. You would not be expected to install a ramp to connect the two premises to allow an employee of the cafe to access the gallery because the costs would cause unjustifiable hardship and there was already an accessible entry available through the front door of each premises.
8.5 Other likely detriments
In addition to any financial circumstances you must consider whether there are any other likely detriments that might accrue if you make the adjustment. This means considering the implications of the adjustment on the organization of work, other employees and the work environment. It also includes considering the effect on your compliance with other relevant laws.
(a)Effective Organization of Work
How making the adjustment might affect the organization of work including:
- the number of employees;
- the physical and spatial organization of work;
- the nature of the work to be performed;
- relevant customer requirements (For example: In certain jobs customers may require physical assistance. This would be an important factor where the employee has a physical disability that makes them incapable of providing such assistance);
- workforce planning needs;
- any significant "down time" or interruption to production involved in making the adjustment; and
- any other factors affecting the efficiency, productivity, success, and the competitiveness of your enterprise.
(b) Other employees
Whether making the adjustments will impose unreasonable requirements on other employees. This includes any detriment to health or safety or productivity of any person that might result from making the adjustment.
For example:
- Expecting another employee to provide fulltime mobility assistance although it does not form part of their job.
- Supervising an employee with an intellectual disability might be so time consuming as to substantially interfere with the ability of another employee to perform their job.
(c) Work Environment
The nature and likelihood of any benefit or detriment to the work environment that may result from making the adjustment.
For example:
- Altering the level of lighting in the workplace to the extent that it detrimentally affects other employees' ability to perform their job could cause unjustifiable hardship.
- Improving workplace communications for an employee with an intellectual disability may have benefits for all employees which may militate against you claiming unjustifiable hardship
(d) Other laws
Whether the adjustment would assist or interfere with you complying with other relevant laws, standards or agreements.
9. The Duty Not To Discriminate
9.1 What does this mean?
You have a general duty not to discriminate against any employee with a disability. The two types of unlawful disability discrimination are:
- discrimination by less favourable treatment (known as direct discrimination); and
- discrimination by treatment that is less favourable, or adverse, in impact (known as indirect discrimination).
9.2 Direct discrimination
This occurs if because of disability you treat an employee less favourably than you treat other employees who do not have a disability. Treating an employee less favourably (or less fairly) includes proposing to treat them less favourably. This means dealing with the employee in a way that is both:
- different even though the circumstances are the same or similar to other employees; and
- disadvantageous.
For example:
- Dismissing or paying an employee less than other employees in comparable positions may be disadvantageous unless it is because the employee is less productive than comparable employees or the employee is on a modified wage (explained in 9.4 ).
- Assigning an employee to less demanding work or a narrower range of duties might be perceived by some people as advantageous, or perhaps even as preferential treatment, but could be reasonably regarded by a person with a disability as disadvantageous treatment, because of resulting reduced job satisfaction and opportunities for promotion. This would not however, be discriminatory if the person is less productive or is on a modified wage (explained in 9.4 )
The fact that an employee may require an appropriate adjustment is not an excuse for less favourable treatment.
9.3 Indirect discrimination
(a) What is indirect discrimination?
Indirect discrimination occurs if you require an employee with a disability to comply with a rule, requirement or condition that most people without the disability can comply with but:
- the employee with a disability is unable to comply, and
- it is unreasonable for you to expect the person with a disability to comply.
This is known as "indirect" because you may apply the same rule, requirement or condition to all employees but the impact is particularly adverse for the person with a disability.
(b) What is reasonable?
Whether the rule, requirement or condition is reasonable will depend on looking at all the relevant circumstances of each case. Questions to ask include:
- Is it for a non-discriminatory purpose? Obviously a rule that is intended to discriminate is more likely to be hard to justify.
- Is there an important purpose for imposing it? For example, a rule for which no clear purpose can be identified is unlikely to be accepted as reasonable.
- Is your purpose more significant than the adverse impact on the person with a disability? A compelling purpose such as quality, productivity or safety may be more able to justify measures with a disadvantageous impact on people with a disability than less compelling purposes of administrative convenience or 'style'.
- Could you avoid disadvantaging the employee by making an appropriate adjustment? This is a key issue: you must ask yourself if the employee could do the job if an appropriate adjustment were made.
- Would removal or modification of the rule or practice impose unjustifiable hardship on anyone? This is also a key issue: you are entitled to ask yourself whether making changes will be unjustifiably hard for you or anyone else.
- Have you used all the information reasonably available to you at the time to ensure that there is no alternative, or no appropriate adjustment? Even a compelling purpose does not necessarily mean that a particular way of achieving that purpose is reasonable to adopt or maintain.
- Is the way you do things as important now as it used to be? A rule which was once the only reasonable means of achieving a purpose, may not be reasonable to maintain because alternatives have become available. On the other hand, in some circumstances changes in a job might now make a rule a necessity even though it was started just because it was convenient.
- Is there any relationship to previous discrimination? For example: A rule of "last on, first off" may often be convenient in deciding which employees are to be subjected to laying off. But where employees with a disability were not recruited until recently due to previous discrimination, such a rule, although neutral in itself, will in effect perpetuate the effect of this discrimination, and be more likely to be regarded as unreasonable.
- How much disadvantage results from the rule, requirement, condition, practice or other treatment? A rule that completely excludes a person with a disability or which presents a serious barrier to equal opportunity, may require stronger justification than a rule which a person can overcome.
9.4 When is discrimination lawful?
The following are some of circumstances where you will not be unlawfully discriminating against an employee with a disability.
(a) Permissible rules
A rule, requirement or condition that has an adverse impact on an employee with a disability is allowed if:
- it is necessary because of the inherent requirements of the job; or
- its removal or modification would impose unjustifiable hardship.
(b) Refusing to employ, transfer or promote
You may refuse to employ, transfer, or promote, a person with a disability because:
- they are unable to perform the inherent requirements of the job; and
- this would not be remedied by making an appropriate adjustment.
(c) Less productive employees
You can treat a person with a disability who is less productive than your other employees differently so long as:
- they would not be more productive if appropriate adjustments were made;
- you give comparable treatment to other employees who are equally less productive.
This includes paying an employee with a disability less than your other employees if you are complying with:
- an award or order of a court or tribunal specifically applying to persons who would be entitled to a disability support pension if they were not being paid a wage or salary;
- a certified agreement (within the meaning of the Workplace Relations Act 1996); or
- an Australian Workplace Agreement (within the meaning of the Workplace Relations Act 1996).
provided that :
- the employee would otherwise be eligible for a disability support pension; and
- the salary or wages have been worked out by reference to their capacity to work productively in the particular job.
(d) Failure to comply
You may dismiss, or choose not to hire, or discipline an employee if the employee fails to comply with a rule, requirement, condition, practice or policy of your workplace and:
- the rule is reasonable;
- you apply the rule evenly to all your employees; and
- you apply the consequences of not complying with the rule evenly to all your employees.
(e) Unjustifiable hardship
The employee needs you to make an appropriate adjustment so that they can perform the inherent requirements of the job, but making the adjustment would cause you unjustifiable hardship.
10. Duty not to harass
10.1 Duty
You will be acting unlawfully if you or someone who is your agent harass any employee or potential employee with a disability about their disability. Your liability for others is explained in 3. above.
10.2 What is harassment?
Harassment is not defined in the DDA. It means acting with an intent to humiliate, offend, intimidate or distress an employee because they have a disability.
- For example: Pulling faces or making gestures during a meeting to denigrate the opinions of a person who is blind.
It also includes acting in a way that might reasonably be expected to be humiliating, intimidating or distressing to an employee because they have a disability. You will not however be liable for harassing an employee if your actions are otherwise lawful under these Standards.
- For example: Asking an employee intimate questions about their disability might be harassment, even if this was not your intention. It would not however be harassment if you are asking a question that is reasonable and necessary to work out what type of adjustment the employee might need.
PART C EXCEPTIONS
11.1 General Exceptions
Irrespective of anything to the contrary elsewhere in these Standards you will not be acting unlawfully in the following circumstances.
(a) Providing equal opportunity
It is not unlawful for you to do anything reasonably intended or necessary to provide equal opportunity to a person with a disability. This includes determining their specific needs and eligibility for benefits.
(b) Reasonable and necessary inquiries
You must not request information either from a person with a disability or about a person with a disability for any purpose that is unlawful under these Standards.
You may, however, make inquiries, assessments or examinations or do any act that is reasonably necessary to decide:
- if an employee can do the inherent requirements of the job;
- if an employee can comply with other job related requirements that do not involve unlawful discrimination;
- if an employee needs an appropriate adjustment and what that would be;
- if making an appropriate adjustment will cause you unjustifiable hardship;
- any superannuation, insurance or workers compensation entitlements that you or the employee may have; or
- any distinction, exclusion or limitation to insurance or superannuation that is reasonable and lawful under Section 46 of the DDA.
Whether an inquiry is reasonably necessary will depend on the information available to you at the time, the surrounding circumstances and your obligation to make appropriate adjustments.
For example: When interviewing for a waiter or waitress it would not be considered reasonable to ask if the applicant is HIV positive.
(c) Health and safety
It is not unlawful discrimination to do anything that is reasonably necessary in the circumstances to protect the health or safety of any person.
(d) Complying with other laws
It is not unlawful to comply with a law that is a prescribed law under Section 47 of the DDA. At present there are no such laws.
11.2 Specific exceptions
These Standards do not apply in the following specific circumstances.
(a) Modified wage based on productive capacity
This exception is explained above in 9.4 (c).
(b) Combat and related duties
It is not unlawful for you to discriminate against a person with a disability in connection with employment in the Australian Defence Force in the following circumstances:
- if the job involves performing combat duties, combat-related duties or peacekeeping service
- if the job involves prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service as prescribed in Regulations or
- if the job involves 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.
The terms "combat duties" and "combat related duties" have effect as specified in the Disability Discrimination Regulations (Cth) 1996.
(c )Domestic duties at your home
It
is not unlawful for you to discriminate in arranging to recruit and selecting
an employee to perform domestic duties in your private residence. It is
unlawful however under these Standards to harass someone in these circumstances.
PART D:The effect of not complying with these Standards.
12. Unlawful Acts
If you do not comply with these Standards you will be acting unlawfully under the DDA. This means:
- someone who is aggrieved may make a complaint against you which may lead to an inquiry or a hearing (set out in Part 4 of the DDA); and
- you may be held liable for an offence, such as victimisation, inciting unlawful acts, or advertising an attempt to do an unlawful act (set out in Sections 42-44 of the DDA ); or
- you may be liable for the unlawful act of someone else if they are held to be your agent or servant. This includes causing, instructing, inducing, aiding or permitting them to do an unlawful act (set out in Section 122 of the DDA) or failing to take reasonable precautions and exercising due care to stop them from performing the unlawful act (Section 123 DDA).