Disability discrimination is treating a person less favourably because of a disability.
Disability discrimination is prohibited by the Commonwealth Disability Discrimination Act, as well as anti discrimination laws in each state. Disability discrimination is also prohibited, in the context of work, under the Fair Work Act.
The areas in which disability discrimination are prohibited are more extensive than in relation to any other of the prohibited reasons. Under the Disability Discrimination Act, the following forms of discrimination are prohibited on the grounds of disability:
- by an employer – as to who is offered work, in terminating people from employment, or subjecting employees or contractors to some detriment;
- by an educational institutaion – as to who is accepted, rejected, expelled or otherwise suffers a detriment;
- by a person controlling premises – as to who is able to access the premises;
- by a person providing goods and services, including accommodation and real estate – as to who the goods and services are provided to, and the terms on which they are provided;
- by clubs and incorporated associations – as to access to membership or other benefits of the club;
- in the administration of Commonwealth programs.
Direct and indirect discrimination
Both “direct discrimination” and “indirect discrimination” are prohibited in the context of disability discrimination.
Direct discrimination involves treating a person less favourably because of the prohibited reason while indirect discrimination involves the imposition of a rule or requirement that has different impact on people because of a protected quality. For example, a requirement that employees be more than 6ft tall would indirectly discriminate against women, as men are disproportionately more likely to be more than 6ft tall.
Inherent requirements, unjustifiable hardship and reasonable accommodations
Although expressed in slightly different terms, most disability discrimination acts contain three factors that qualify the test of whether conduct is unlawful.
In the context of employment discrimination, it is not unlawful to discriminate against a person if they cannot perform the inherent requirements of the job. The question of what the inherent requirements are requires an examination of the key and central elements of the person’s job. By way of example, an inherent requirement of a truck driver may be that they be able to hold a licence. Termination of a person with a disability that prevents them from being able to drive would not be prohibited.
It is generally a defence to an allegation of disability discrimination that requiring the person not to discriminate would impose an unjustifiable hardship on them. The test of what is an unjustifiable hardship will vary by reference to the size of the potential discriminator, and the cost or imposition of any change that they would be required to make in order to not discriminate.
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