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10 years of the DDA: Employment forum

10 years of the DDA: Employment
forum

(Notes for HREOC presentation)

As part of events to mark the tenth anniversary of entry into force of
the Disability Discrimination Act the Human Rights and Equal Opportunity
Commission is conducting a series of forums on employment discrimination
issues.

We would like to discuss:

  • Perspectives on what is being achieved in this area
  • Possible strategies for increasing equality of opportunity in employment
    for people with a disability.

More complaints are received on employment issues than any other area
under the DDA.

A high proportion of these complaints have been resolved by conciliation.

Summaries of results of complaints through conciliation, Commission determinations
and court decisions are available on the Commission's web site. A selection
of these are included in the publication being released for the tenth
anniversary of the DDA.

These results show some good outcomes being achieved for individuals,
by adjustments being made to accommodate the effect of a person's disability,
or by misconceptions about the effect of disability being corrected.

Decisions on complaints have emphasised some important principles.

In particular, a number of decisions have confirmed the important point
that the principle of reasonable adjustment is a central part of disability
discrimination law, even though the DDA itself does not expressly set
out or describe the extent of this principle. Decisions have been made
about reasonable adjustment in provision of equipment and in supervision
and other management issues.

Decisions have also emphasised the need for close attention to the inherent
requirements of the particular job and the particular person's ability
to perform those requirements, rather than acting on stereotyped assumptions.
For example, complaints by colour blind people have succeeded in some
cases and not in others, because of variations in the nature of the jobs
concerned and the nature of the particular person's disability in different
cases.

But after more than eight years of operation of the legislation there
are still only a few handfuls of decisions, so the amount of useful precedent
on what is and is not required is still small.

There are also many cases where it has been too late to fix damaged working
relationships and it has only been possible to negotiate or order compensation
for loss of income and opportunity and other damage. Compensation is obviously
better than nothing for people affected by discrimination, and may give
an incentive to employers to avoid discrimination in future.

The aim of the DDA, however, is to stop discrimination happening in the
first place.

A major part of the initial stimulus for introduction of national disability
discrimination legislation was as part of a strategy to improve employment
opportunities for people with disabilities (and incidentally to reduce
rates of dependence on the social security system).

National legislation on disability discrimination in employment was one
of the major recommendations of the Labour and Disability Workforce Consultancy
report which some of you may remember as the "Ronalds Report",
among a number of other reports leading to the legislation. These reports,
and the second reading debates on the Disability Discrimination Bill,
indicate a range of barriers to equality of opportunity in employment
intended to be addressed by the legislation, including:

  • discriminatory attitudes or lack of awareness leading to direct discrimination
  • existing rules and procedures having disadvantageous effects on people
    with disabilities
  • physical barriers in premises and equipment
  • barriers in information and communication.

Barriers addressed by the DDA arise at all stages of the employment process:
in entry to employment, in opportunities for promotion and advancement,
in benefits of employment, and in dismissal.

The passage and existence of legislation was not seen then and should
not be seen now as an end in itself. It was and is an investment by government
and the community intended to pay dividends in large scale social change
towards a more equal society.

There is not much evidence however that this strategy has yet succeeded
in the employment area. Rates of unemployment and underemployment among
people with disabilities remain much higher than for people without a
disability.

Employment is one of the areas where development of disability standards
is provided for. Considerable time and effort was spent from 1995 to 1998
by the Commission, other government agencies, and representatives of employers,
trade unions and people with disabilities, in attempting to develop such
standards.

The draft Disability Standard is linked from the employment page in the
disability rights section of the Commission's website.

It has not been possible to date to reach agreement on standards to introduce.
One problem has been in finding a balance between standards which are
too specific to be workable in all employment situations and standards
which are too general to give much more guidance than the existing open
ended discrimination provisions.

Although the draft Standards in this area did not specify outcomes (such
as "when does a sign language interpreter have to be provided"
or "what restrictions are permissible on using machinery if a person
has epilepsy" or "what adaptive equipment should be provided
for a blind person"), they would have assisted by at least making
the principles clearer.

In particular the draft Standards tried to make clearer the duty to make
reasonable adjustments to accommodate a person's disability as part of
the duty not to discriminate. If the Disability Discrimination Act were
being drafted now the Commission would certainly seek to have more explicit
provision to this effect included in the legislation itself.

However, in the United States, where more prescriptive and detailed regulatory
requirements have been in place for some years under the Americans with
Disabilities Act, the evidence is similarly that overall employment outcomes
for people with disabilities have not improved significantly.

So clearer or more specific legislative provisions do not seem to be
the whole answer.

Given the slow progress we have seen towards adoption of Standards, not
just in employment but in any area, the Commission has taken the view
that we have to explore all available mechanisms for the same purposes.
Relying solely on an individually-based and essentially private complaint
investigation and conciliation process, followed by hearings in a small
minority of cases has not been sufficient as a means of achieving elimination
of discrimination in areas including employment and education.

In addition to the work on a possible Standard the Commission has developed
a number of resources, such as the Frequently asked Questions, and identified
other useful resources on our website at http://www.humanrights.gov.au/disability_rights/employment/employment.h…

The DDA provides for the granting of temporary exemptions (up to 5 years).
The Commission has decided that it will grant an exemption where this
advances the objects of the Act. The exemption process has potential for
significantly wider use than it has had so far, as a positive means of
structuring movement towards elimination of disability discrimination.

This potential may be easiest to see in an area like public transport
where appropriate results can be specified in very concrete terms - this
many accessible buses operating by this date and so on. In employment
it may be harder to specify results in detail. But what could be specified
are appropriate processes, both to prevent discrimination occurring and
to provide more speedy redress when it does occur.

Equal opportunity in work is not only a matter of attitudes and practice
in the workplace itself. It depends on equality in the pieces that work
is made up of - skills formation, accessible communications and information
systems, accessible premises, accessible transport and so on.

Positive results in future employment outcomes may be found from achievements
in these areas. But more direct strategies to achieve equal employment
opportunity are also necessary.

The Disability Discrimination Act does not contain any explicit requirement
even for larger or public sector employers to develop, implement and report
on positive strategies to achieve equal opportunity for people with disabilities.

There is also a need to look at whether employers have effective and
sufficiently easy access to information on how to deal with disability
accommodation issues.

There is still no equivalent in Australia for example to the U.S. Job
Accommodation Network advisory service, which provides practical information
and advice to employers on equipment or other modifications necessary
to accommodate a person's disability in the workplace, other than the
efforts of agencies like the Independent Living Centres and Technical
Aid to the Disabled (seriously under resourced compared to the task to
be performed).

The DDA cannot provide the whole of a strategy for achieving equal employment
opportunity. In the context of current welfare reform discussions, many
disability organisations have called for attention to the "other
side" of mutual obligation: the obligation of government and community
to do all they can to remove the barriers which presently exist to people
with disabilities taking advantage of opportunities and contributing more
fully in the economic life of Australia.

Discussion questions

  • Are there priority issues within employment where standards should
    be reconsidered?
  • Are there areas where the exemption process could be used to promote
    positive measures for equal employment opportunity?
  • What other strategies could be used to improve employment outcomes
    for people with disabilities?
  • Are there any suggestions for improvement in the information and advice
    provided on employment discrimination issues by HREOC?