Discrimination Update for Employers
On 8 July 2009, the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) received royal assent. This Act amended the federal Disability Discrimination Act 1992 which makes disability discrimination unlawful. The recent amendments made it easier for employees to bring disability discrimination complaints, but also extended the exceptions available to employers.
The amendments clarified a number of issues arising in relation to the Disability Discrimination Act. For example, the amendments clarified that the definition of disability includes a genetic predisposition to a disability and behaviour that is a symptom or manifestation of a disability. The amendments also clarified that the Act applies to discrimination on the basis that a person has a carer, assistant aid or assistant animal, except in relation to specific circumstances regarding the control, health and training of an assistance animal.
Significantly, the legislation also expanded what constitutes indirect discrimination under the Disability Discrimination Act. Indirect discrimination occurs where:
- a disabled person is required to comply with a requirement or condition;
- the disabled person does not comply or is unable to comply with the requirement or condition because of their disability;
- the requirement or condition was not reasonable; and
- either:
- the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; or
- the employer has not made reasonable adjustments that would enable the employee to comply, to the disadvantage of the disabled employee.
Previously, the disabled person had to demonstrate that a substantively higher proportion of persons without the disability were able to comply with the requirement or condition. This was often difficult for the employee to demonstrate. It now falls to the employer to prove this when demonstrating that the requirement or condition was reasonable.
Where unlawful discrimination has occurred, the discriminator cannot ask the disabled person to provide information in connection with the discriminatory act that people without that disability would not have to provide. This includes requests for information relating to the disability but does not include information required to determine reasonable adjustments or whether the employee can carry out the inherent requirements of the position.
While the amendments made it easier for employees to bring claims for disability discrimination, they also expanded the exceptions to discrimination available to employers.
The Disability Discrimination Act creates an exemption to unlawful discrimination where an employee’s disability precludes them from performing the inherent requirements of their position (after any reasonable adjustments) or it would be unjustifiably hard for their employer to accommodate their disability. The application of these exceptions has been expanded.
The inherent requirements exception has been expanded to apply to all employment situations, including the terms and conditions on which employment is offered. In addition, the employee’s relevant past training, qualifications, experience and work performance will be considered when determining whether this exception applies.
The unjustifiable hardship exception now applies to all unlawful disability discrimination except harassment and victimisation. The criteria for determining "unjustifiable hardship" have been expanded to include the availability of financial and other assistance to the disabled person and the benefit or detriment to the community at large. The party claiming unjustifiable hardship (i.e. the employer) must prove that this exception applies.
Employers should be aware of their increased potential liability for disability discrimination as well as the broader application of the inherent requirements and unjustifiable hardship exceptions to disability discrimination. Employers should review and update relevant policies and procedures and ensure that their human resources workers are up to date on the changes.
