Discrimination in relation to your disability or health condition must be 'direct' or 'indirect'. Federal and state disability anti-discrimination laws define direct and indirect discrimination in similar ways.
What is the meaning of 'direct' discrimination?
Case Study:
Leroy's Story
Leroy drove a truck and operated earth excavation machines for a construction company. He was a casual employee but worked full time hours. His employer has promised him that as soon as a new contract of works was signed, he would be appointed a full time employee with a minimum 38 hour week shift. He was subsequently diagnosed with a liver disorder requiring ongoing treatment. He was unable to work for a few weeks, but gradually returned to work, increasing his hours back to his usual roster. He requested a late start because his medications affected his sleeping pattern and he needed to perform some diagnostic tests and to self-administer intravenous medications in the morning. On several occasions he needed to finish work early to attend medical appointments.
Leroy noticed a reduction in his hours of work until finally his wages had halved. He spoke to his employer who claimed that work was slowing down and he was required on fewer occasions. Leroy noted that the other three employees did not get any reduction in hours, had worked overtime and later, another casual employee was actually hired. Eventually the new person was appointed full time over him. When he complained about his dwindling hours of work and being bypassed for a full time position, the employer presented a number of complaints about his work performance and pointed out that the new employee had better qualifications and more experience.
Leroy made a complaint of disability discrimination and argued that had there been serious performance issues about his work, they would have been raised earlier and the absence of verbal or written warnings indicated that the real reason for his reduced employment benefits and opportunities was his health condition and the employer’s attempt to force a resignation. Leroy felt returning to work was no longer a pleasant option and opted to receive compensation for loss of income and pain and suffering as a resolution to his complaint. He now works for another company who offered him a full time position after a three month probationary period.
You have experienced direct discrimination if your disability or health condition means that you have been treated less favourably than another person in the same or similar circumstances.
For example, you have experienced direct discrimination if an employer decides not to employ you or not to offer you a promotion because of your disability or health condition.
Your disability or disabling health condition does not have to be the only reason for the discrimination, as long as it is a substantial reason.
What is the meaning of 'indirect' discrimination?
You have experienced indirect discrimination if your employer imposes an unreasonable requirement or condition that on the face of it appears to operate the same way for everybody but has the effect of disadvantaging you because of your disability or health condition. The requirement must be unreasonable in the circumstances.
For example, you have experienced indirect discrimination if you use a wheelchair and the design of your workplace prevents you from accessing areas of the workplace that are essential to your work.
Similarly, you have experienced indirect discrimination if you are deaf and your employer refuses to provide you with communication aids, such as a telephone typewriter or a sign language interpreter for meetings.
The requirement or condition must be unreasonable in the circumstances. The Equal Opportunity Act 1995 sets out some of the things that should be considered when determining what is reasonable. These include:
- the consequences of you not complying with the requirement or condition
- the cost of making alternative arrangements for you
- the financial circumstances of the employer imposing the requirement or condition on you.
What is the meaning of ‘adverse action’?
Rather than dealing with ‘direct’ or ‘indirect’ discrimination, the Fair Work Act deals with ‘adverse action’. Adverse action is defined to include dismissal, injuring an employee in employment, altering an employee’s position to their prejudice, discriminating between employees, and refusing to employ a prospective employee.
Next Section: Is your workplace situation covered?
