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Disability Disability Rights

DISABILITY DISCRIMINATION AND DISCLOSURE
IN RECRUITMENT AND EMPLOYMENT

Cristina Ricci

Australian Human Rights Commission

Presented at the HSA Group Professional Conference
Coogee, 12 September 2008

 

Introduction

I would like to begin by acknowledging the traditional owners of the land on which we meet and pay my respects to their elders both past and present.

I would also like to thank the HSA group for inviting me today to speak with you about a significant human rights issue – the right of people with disability to work and participate in the social and economic life of our community without discrimination and with appropriate support.

Disclosure of disability – why is it such a problem? Why do we not have employers saying “confide in me” with people with disability saying “it’s no secret” prior to discussions about disability, an examination of the inherent requirements of the job and exploration of possible adjustments and accommodations?

Why instead when employers repeat “confide in me” - you’ve got “nothing to lose” do we have people with disability saying “Put yourself in my place” I’ve “got to be certain”. The reason for this being that most people with disability know that disclosure more often than not results in termination from a job or recruitment selection process.

Well, the first solution could be to get these people out of Kylie Minogue lyric land!

The other, more difficult solution is to work out how to create supportive workplaces that fosters disclosure and enable employers to select the best candidate for the job, maximise productivity and ensure legal obligations are met, including OHS obligations and ensuring the rights of people with disability are protected.

And this will be what I will try and cover today.

But before I start, let us examine the magnitude of the problem.

What do we know about people with disability in employment?

High unemployment.

    • Despite the continuing record low unemployment rate for people without disability (currently 4.1%) and the skills shortage, the unemployment rate for people without disability has not improved and remains high.
    • For example, the latest available national data which was collected in 2003 indicates that the average unemployment rate for people with disability was 9 % and as high as 18% for people with intellectual disability and 19.5% for people with mental illness (and at that time it was 5% for people without disability).
    • Additionally, the employment rate of people with disability in the Australian Public Service has also dropped significantly. In 1986 the proportion of ongoing APS staff with disability was 6.6%; in 2005 it had dropped to 3.8%, and at 30 June 2006 this had dropped again to 3.4%.

High level of discrimination in employment: In the period 2005-2006, 58% of complaints received by the Australian Human Rights Commission under the Disability Discrimination Act related to employment. Importantly, more complaints are lodged under the DDA than any other Act administered by the Commission.

Problems with disclosure. What we know from the complaints process:

    • Disclosure of disability may occur in many ways and at many points along the employment continuum and not always in the control of the person with disability. Disclosure may occur:
      • during the recruitment phase or at interview
      • as a result of unclear application form/medical assessment
      • during a referee check
      • after an offer of employment
      • as a result of a privacy breach by a colleague
      • after performance issues have been raised
      • due to exacerbation of disability
      • just prior to termination of employment
    • disclosure of disability more often than not results in termination of employment or non-progression in a recruitment process
    • dishonesty / breach of code of conduct
    • assumptions about ability to do the job
    • assumptions about ‘duty of care’
    • excuse to performance manage/terminate employment
    • focus on diagnosis rather than the effects and need for adjustment

(Unfounded) employer fears about higher health and safety risks.

    • In 2005, the Australian Human Rights Commission conducted a National Inquiry into Employment and Disability.
    • During that Inquiry, the Commission found that one of the main impediments to the employment of people with disability lies in employer concerns about increased exposure to legal and financial risks related to occupational health and safety, disability discrimination and unfair dismissal laws.
    • The primary concern appears to be the belief that there are higher health and safety risks when there are people with disability in the workplace, and therefore greater exposure to workers compensation claims.
    • These beliefs appear to be strong enough to have a significant impact on hiring and termination decisions by employers.
    • Importantly for the discussion today, these beliefs then drive many employers to the conclusion that they have a right to know about their employees’ disability because they fear they are exposing themselves to increased safety risks, legal liability and escalating premiums.

This information indicates that the problem of discrimination in employment is widespread and significant. But it is a big picture story. On a more personal note, I would like to share with you a story that I think reflects what many of you frequently experience on a day-to-day basis with regard to resistance and discrimination in hiring and retaining people with disability in open employment.

 

I recently had a call from a Commonwealth agency. The caller asked me for specific wording they could use when advertising vacancies to warn potential applicants with disability about assessments and checks that would be conducted. The caller also requested advice about a series of statements to describe potential outcomes which would try and ensure the agency had a “get out of jail free card” in case a person with disability was hired and it didn’t work out.

I must admit I was astonished that this person thought they could call the Australian Human Rights Commission for “simple wording” to so obviously discriminate against potential employees with disability. Mind you, the caller kept repeating “don’t get me wrong, we want to hire people with disability, but it’s just that you have to understand the type of work we do and we have to have people that can rotate jobs”.

When I pressed the caller to talk a little more, it turns out the agency did not have job descriptions for each job, and the caller did not understand the term ‘inherent requirements of a job’ as was indicated by the example that employees must be able to stand for 7 hours. The caller went on further to state that workers must be able to do each others’ jobs if the need arose – a criterion supposedly indicating that people with disability therefore couldn’t be hired.

The conversation was littered with assumptions, myths and stereotypes. But most importantly the call demonstrated an underlying unwillingness to consider hiring people with disability an implement appropriate HR practices.

I also do not think the caller was satisfied with my conclusion that the advertisement should simply state the employer was an EEO employer and that the selection criteria would be based on the ability of applicants to demonstrate their capacity to carry out the inherent requirements of the job. I concluded the conversation by providing the caller with links to our website for further information about the DDA and where to find information about how to conduct non-discriminatory pre-employment medicals.

My understanding is that many of you face similar scenarios to the one I have just described in the diverse areas of service provision provided by the HSA Group:

  • As part of the JCA program – when problem solving with people with disability regarding choices and approaches to disclosure of disability to potential employers
  • When working with injured workers – in particular, when advising employers of a workers’ permanent incapacity and when attempting to negotiate with employers modifications to tasks or the environment to accommodate workers
  • Medical and functional recruitment and selection with employment applicants

The aim of the presentation today is to provide you with information to:

  • gain a better understanding of the Disability Discrimination Act and how it has been applied
  • assist you to inform and educate employers
  • assist people with disability to decide if, when and how to disclose
  • enable you to conduct your work in a way that promotes and protects the rights of people with disability.

Outline of presentation today:

  1. Summary of recent research about Occupational Health and Safety and people with disability in the workplace
  2. Overview of the Australian Human Rights Commission
  3. Over of federal human rights and anti-discrimination law
  4. Overview of the Disability Discrimination Act (DDA)
  5. Principles of the DDA
  6. Pre-employment medicals.

 

ASCC study – People with disability are not a higher risk

In response to the Australian Human Rights Commission’s National Inquiry into Employment and Disability, the Australian Safety and Compensation Council conducted research to determine if there was legitimacy to employer concerns about increased safety fears about people with disability in the workplace or if these fears were based on myth.

In June last year, the Council released its report Are people with disability at risk at work? A review of the evidence.

The report indicated:

  1. There is no conclusive evidence to support the suggestion that workers with disability are more likely to be injured at work than other employees.
  2. Research indicates workers with a disability have on average, a lower number of OHS incidents and have lower workers’ compensation costs, in comparison to other employees.
  3. Research indicates that the productivity of people with disability is similar to that of employees with no disability.
  4. Workers with disability have lower absenteeism and higher retention rates than employees without disability, which leads to reduced costs in terms of recruitment and training of new staff.

The Chairman of the Australian Safety and Compensation Council, Mr Bill Scales, concluded:
“Contrary to common perceptions by employers that people with disability pose an increased OHS risk in their workplace, our research shows that the opposite is true"

The report indicates that the inclusion of people with disability in the labour force leads to economic and social benefits for people with disability, employers and the community as a whole.

We were excited about the findings of the study and the fact that the research was conducted by the Australian Safety and Compensation Council lends weight to the evidence. We have found it to be a very powerful tool to educate employers and the community to challenge many myths and stereotypes. We think it will be a valuable source of information for you too. I have made some copies of the fact sheet associated with the report for you which will be available at the conclusion of this presentation. (Factsheet available at http://www.ascc.gov.au/ascc/AboutUs/Publications/FactSheets/Aworkplacew…)

The Australian Human Rights Commission

The Australian Human Rights Commission is Australia’s national human rights institution. It has four broad functions:

  • Investigation and conciliation of complaints
  • Human rights education and promotion
  • Policy and legislative development
  • Amicus curiae & interventions

The Disability Discrimination Act is one of five Acts administered by the Australian Human Rights Commission:

Federal Human Rights & Anti-Discrimination Law

  • Human Rights & Equal Opportunity Commission Act 1986
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992 (‘the DDA’)
  • Age Discrimination Act 2004

One of the functions of the Commission is to investigate and conciliate complaints brought under these Acts. Conciliation is where the people involved in a complaint talk through the issues with the help of someone impartial and settle the matter on their own terms. In case you do not know about the services provided by the Commission, the complaint handling service is free and informal.

The DDA

The DDA makes it against the law to discriminate against someone if they have a disability

The definition of "disability" in the DDA includes:

  • Physical
  • Intellectual
  • Psychiatric
  • Sensory
  • Neurological, and
  • Learning disabilities, as well as
  • Physical disfigurement, and
  • The presence in the body of disease-causing organisms.

This broad definition is meant to ensure that everyone with a disability is protected.

The DDA covers a disability which people:

  • Have now
  • Had in the past (for example: a past episode of mental illness)
  • May have in the future (for example: a family history of a disability which a person may also develop)
  • Are believed to have (for example: if people think someone has AIDS).

The DDA makes it unlawful to discriminate on the ground of disability in many areas of public life. For the purposes of your work, the areas include:

  • employment  
  • education
  • access to premises
  • the provision of goods, services and facilities
  • the administration of Commonwealth laws and programs.

Harassment of a person in relation to their disability, or the disability of an associate, is also covered by the DDA and is unlawful in the areas of employment, education and the provision of goods and services.

The DDA also covers people with a disability who may be discriminated against because:

  • They are accompanied by an assistant, interpreter or reader
  • They are accompanied by a trained animal, such as a guide or hearing dog, or
  • They use equipment or an aid, such as a wheelchair or a hearing aid.

 

Principles of the DDA

  1. It is unlawful to collect information from a person with a disability for the purpose of unlawfully discriminating against that person (s30) i.e. relevance of information requested
  2. An employer can make reasonable inquiries of an employee about their ability to do the inherent requirements of the job, identify reasonable adjustments etc
  3. An employer can seek advice from an employee about reasonable adjustments they may need
  4. If a disability is disclosed and an adjustment required, the employer must consider providing that adjustment
  5. Disclosure is necessary when a person’s disability may affect their ability to do the inherent requirements of the job or a reasonable adjustment is needed
  6. Safety is an inherent requirement
  7. Employers must consider individual circumstances
  8. Employers must consider actual risk, not perceived risk. Emplpoyers do not have to guarantee safety.
  9. Privacy – employers can not disclose an employees’ disability to other parties (limited exceptions including: permission given, compliance with another law, for insurance and superannuation pruposes)

1. Unlawful to collect information from a person with a disability for the purpose of unlawfully discriminating against that person (s30) i.e. relevance of information requested

The DDA does not set out particular forms of words or questions as permitted or prohibited.

Rather, the lawfulness of the inquiry depends on whether it is for a legitimate purpose and is a reasonable means for achieving that purpose. Questions will be seen to be “unlawful” if there purpose is to identify people with disability so that they are eliminated from the selection process.

This is why standard and routine questions should be avoided. For example standard or routine questions about disability, such as "have you ever had a mental illness?", in an application form or selection process may be seen to have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it may be unlawful indirect discrimination.

The same is true for questions about disability in an application form. Questions which may be reasonable and permitted at interview, for example to examine whether a person's disability affects their ability to perform the inherent requirements of the job or to determine whether reasonable adjustment is required and possible, will not necessarily be regarded as reasonable or permitted in an application form. The exception is questions for the purpose of inviting applicants to identify any adjustments required to ensure equal opportunity in the selection process itself. The Commission believes this is best done at the stage when applicants are invited for an interview.

For these reasons the Commission advises employers to make clear to the person with disability the purpose as to why they are requesting or require information about disability, to reduce misunderstandings which might lead to fears of discrimination.

2. Employers can make reasonable inquiries of an employee about their ability to perform the inherent requirements of a job and to identify reasonable adjustments

Inquiries, examinations or actions reasonably intended to determine a person's ability to perform the inherent requirements of the relevant job are lawful under the DDA.

Again, however, it is the way this is done and the purpose which determines lawfulness. For example, general questions or a broad non-specific medical examination, although intended to determine a person's ability to do the inherent requirements, might be found to be discriminatory if it is so poorly suited to that purpose that it cannot be said to be "based on" the inherent requirements of the job. There must be a match.

Similarly, inquiries and actions which are intended to provide equal opportunity to people with a disability or to persons with a particular disability are permitted by the DDA.

3. Employers can seek advice from employees about reasonable adjustments they may need

People with disability are generally aware of the adjustments they need so questions or inquiries are better framed from this perspective.

4. If a disability disclosed & adjustment required, the employer must consider providing that adjustment

Once an employee has disclosed a disability, an employer is required to consider appropriate responses, including training or work related adjustments, to accommodate the employee with disability. The only exception to this is if the provision of the accommodation or adjustment would cause the employer unjustifiable hardship. (Section 15 (4))

This was clearly stated in the High Court case of X v Commonwealth (1999) where McHugh J stated that discrimination will not be unlawful if the employees is:

  • not only unable to carry out the inherent requirements of the particular employment without assistance; but was also
  • able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.

The following case that came before the Commission demonstrates a situation where the provision of an accommodation would not impose an unjustifiable hardship on the employer but the employer refused to provide the accommodation saying a medical certificate was not enough and the exact nature of the disability had to be disclosed.

Case 1 – Disclosure of disability
Sally has HIV and had been working successfully for the same provider in the health sector for several years, doing regular hours. During this time, Sally did not disclose she had a disability. After many years, a 24 hour roster was introduced requiring all workers to work rotating shifts. Sally said she could not do this as she needed to keep a regular sleep pattern and accordingly obtained a medical certificate from her doctor to this effect. The certificate stated that she had a chronic health condition and while it did not impair her ability to do the job, for health reasons, she could not work night shifts. Sally did not want to disclose her disability to her employer or to HR due to stigma associated with HIV but more importantly because she believed her information would not be kept confidential. The employer however insisted on knowing the nature of Sally’s disability and would not provide the adjustment until the exact nature of disability was disclosed. Sally offered to see a doctor nominated by the employer for an assessment on the condition that the nature of her disability was not disclosed in the report to the employer. Sally complied, the assessment was conducted and a medical report provided. The matter was unresolved because the employer would not commit to implementing the recommendations of the assessment.

5. Disclosure of disability necessary where disability may affect ability to do inherent requirements of the job or need for reasonable adjustment

From the perspective of employee rights and responsibilities, there is no legal obligation for people with disability to disclose information about their disability, unless it is likely to affect their performance or ability to meet the inherent requirements of the job, including their ability to work safely and ensure the safety of co-workers.

Employees may also need to discuss their disability with their employer if they need to request reasonable adjustments when being considered for the job (such as interview arrangements) or when doing the job (such as modified equipment or flexible working arrangements).

Problems have arisen however with how questions have been asked by employers to prompt disclosure.

 

CASE 2 – Wording of questions

Another matter that came before the Commission involved a woman with RSI who, when filling out the medical questionnaire for a job with a Commonwealth agency, replied ‘no’ when responding to the question: do you have a disability that prevents you carrying out the inherent requirements of the job? In actual fact, she initially ticked yes, then crossed it out and ticked no because she thought, with the provision of reasonable adjustments (voice activated software to produce documents - as was provided in her previous job), she would be able to carry out the job. She was hired and when she requested an adjustment just after she started the job, she was dismissed. The employer denied that the disability was the reason for dismissal instead saying it was because she had lied on her pre-employment medical questionnaire. The complaint was taken to conciliation but the employer would not reinstate the employee. She received $10 000 compensation.

 

CASE 3 – Relevance: Employee did not disclose disability because did not think it was relevant
Gemma had been working for a company for 8 months before she realised she needed back surgery. When she returned to work she was sent to the doctor for an assessment and she disclosed to the doctor that she had had a back injury, non-work related, many years ago. This information was included in the medical report which was sent to the employer. The employer dismissed Gemma on the basis that she had not disclosed her injury on the pre-employment medical form, stating that the injury was relevant to the inherent requirements of the job. Interestingly, she had disclosed other disabilities which she thought would be relevant. Gemma did not disclose her back injury as she honestly believed that her back had been fixed and that there would be no occurrence and that it was not relevant to her ability to perform the inherent requirements of the job. Similarly the complaint was taken to conciliation but the employer would not reinstate the employee.  

6. Safety is an inherent requirement

The question of whether the ability to work safely is an inherent requirement of a job was established firmly in the case of X v Commonwealth. The High Court stated this included safety not only for self but also for others.

In X v Commonwealth the employee, X, was discharged from the Army upon being diagnosed HIV-positive. At the time of diagnosis X enjoyed apparent good health and was symptom free. The Commonwealth argued that it was an inherent requirement of X’s employment that he be able to be deployed as required by the Defence Force. This requirement arose out of considerations of operational effectiveness and efficiency. The Commonwealth maintained that X could not be deployed as needed because, whether in training or in combat, he may be injured and spill blood with the risk of transmission of HIV infection to another soldier.

In this case McHugh J stated:

‘the inherent requirements’ of a ‘particular employment’ are not confined to the physical ability or skill of the employee to perform the ‘characteristic’ task or skill of the employment. In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees.

7. Employer must consider individual circumstances

The case X v Commonwealth also established that the particular circumstances of each case must be examined. An employer can not base assumptions about a person’s ability to work safely based on the type of disability.

In X v Commonwealth Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed) held that when looking at inherent requirements:

it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.

8. Employer must consider actual versus perceived risk – Employers do not have to guarantee safety

The case of Vickers v The Ambulance Service of NSW [2006] also examined the issue of individual circumstances and safety for self and others and concluded that the employer “does not have to guarantee safety”.

In Vickers v The Ambulance Service of NSW [2006], the employee was refused a position as an ambulance officer because of his Type 1, insulin-dependent diabetes. The employer argued that Mr Vickers diabetes posed a grave risk to the safety of himself, his patients and the community at large due to the risk of him suffering a hypoglycaemic event whilst driving an ambulance at a high speed or whilst treating a patient. Accordingly, the employer argued, he was unable to safely carry out the inherent requirements of the employment.
The judge applied the findings of X v Commonwealth reaffirming that mere technical ability to comply with the inherent requirements of a position was not sufficient; the employee must be able to do so safely. However, his Honour held that the safety risk posed by a person’s disability must be considered in light of that person’s individual characteristics, rather than assumptions about that person’s disability based on stereotypes. In addition, that risk must be balanced against other relevant factors, including the likelihood of that risk eventuating. His Honour held that there is no requirement on an employer to ‘guarantee’ the safety of a potential employee and others, as this would be ‘far too exclusionary of persons with diabetes’.

9. Privacy – non disclosure to other parties

Information about an employee’s disability will often involve sensitive personal information. Failure to give appropriate protection to confidential personal information in relation to a person's disability to other employees or third parties may involve or lead to discrimination in some circumstances.

To encourage employees to be open with their employers about disability issues, employers need to reassure people with disability that any information they provide will be treated appropriately.
If information about an employee’s disability is to be shared with other people within an organisation (for example, human resources), employers should be advised to obtain written consent from the employee with disability, unless the sharing of that information is otherwise authorised, or required, by or under law.

The Privacy Act also requires employers to respect the employee’s right to privacy.

Employees with disability should be encouraged to state how they would like their information to be handled or shared if, and when, they decide to disclose their disability.

Case - Inadequate record keeping or protection of private and confidential information?

Antonio had a physical impairment and had worked for 9 years with the same manager. Antonio had disclosed his disability to his manger when he commenced work and his roster had always been adjusted to accommodate his disability. When a new manager took over, the roster system was changed to 12 hour shifts with late finishes. When Antonio spoke to his new manager he said he knew nothing about Antonio’s disability and neither did HR. HR said that as Antonio had not disclosed his disability in the past they required evidence and requested he obtain a medical certificate.

Pre-employment medicals

In order to satisfy the first principle of the DDA (inquiries and examinations unlawful if purpose is to discriminate) and the second DDA principle (examinations reasonably intended to determine a person’s ability to do the inherent requirements of a job are lawful) then:

  • Pre-employment medicals must be relevant to the job in question, and not an opportunity to find out about irrelevant past medical or worker's compensation issues
  • An employer can use pre-employment medical tests if they directly relate to the genuine requirements of the job
  • An improperly conducted pre-employment medical may amount to discrimination
  • An employer may be legally responsible for discriminatory medical tests or the misuse of any information obtained.

Victorian Equal Opportunity and Human rights Commission
Tips for employers for avoiding discrimination in pre-employment medical tests

Only use pre-employment medical tests that:

  • Relate specifically to the genuine and reasonable requirements of the job.

    For example physical tests should relate strictly to the person’s ability to carry out the work such as lifting a certain weight or sitting stationary for prolonged periods. Psychological and aptitude testing should relate specifically to the genuine and reasonable requirements of the job 

  • Accurately identify the specific physical and mental skills required in the job
  • Are conducted by a medical practitioner who is experienced in conducting non-discriminatory, pre-employment medical tests and who understands the genuine job requirements 
  • Assess all applicants for a particular job. Factors such as age, gender  or disability should not determine who is tested
  • Assess current health and not predict future deterioration unless it is reasonable to do so. This is an example of when an assessment to predict future deterioration was reasonable and appropriate:

    Mr Osborne was asked to undergo a medical examination for the job of Mill Hand at CSR Timber Products (SA). He was not given the job, because of previous injuries to his wrists.

    Two medical opinions indicated that Mr Osborne would be under an increased risk of forearm and wrist injuries, and of developing degenerative problems if he were employed.

    Reason justified - from the information obtained that Mr Osborne was not able to carry out the inherent requirements of the position without endangering himself.

  • Ensure job applicants are tested using any service or facility they would need to perform the job.
  • Avoid asking applicants about past or current injuries, number of sick days taken in the previous year or previous workers’ compensation claims
  • Are confidential.

 

Example of an inappropriate medical test from Equal Opportunity Commission of South Australia
Hurley v Electricity Commission (1994) EOC 92-624
Mr Hurley applied to work as a cleaner and labourer with the Electricity Commission of NSW. A pre-employment medical showed that he suffered from hypertension (high blood pressure). The doctor did not match Mr Hurley's level of fitness to the actual job but rather assumed he would not be fit enough to do the job. Mr Hurley was awarded $40 000.

Summary

1. When to encourage disclosure – consider who and when

    • For people with disability the personal decision to disclose is equated with a very real fear of negative consequences. Knowledge and accommodation of this fear by you and employers is a key factor in supporting disclosure for the mutual benefit of people with disability so their needs are accommodated and any adjustments provided, and employers so the best person for the job is selected, productivity is maximised and legal obligations are met.

Discuss who needs to know, does it need to be documented and how to take control of what happens to personal information.

2. Inherent requirements – work with employers to get these right!

3. Challenge the perception that people with disability are an increased safety risk – use ASCC report

4. During discussions with employers:

    • talk about disclosure from a positive perspective;
    • Findings indicate that employers who seek to accommodate people with disability and provide a flexible workplace, create an environment which fosters disclosure of disability and maximises productivity.

5. Discuss with employers ways to enhance specificity and eliminate discriminatory aspects of pre-employment medicals

Conclusion

With Australia’s recent ratification of the UN Convention on the Rights of Persons with Disabilities and the Government’s current work to develop a National Mental Health and Disability Employment Strategy, hopefully we will soon see an increasing number of strategies that will enable more people with disability to participate in work with dignity. Hopefully this will also mean more resources and support for employers and you to achieve this goal.

Best of luck with all your work to promote and protect the rights of people with disability and assist people with disability into work or return to work.

Thank you.