In certain circumstances, federal and state anti-discrimination laws allow discrimination and specifically disability discrimination in the workplace.
Case Study:
Rachel's Story
Rachel worked in a large-sized retail store in a shopping complex. After being diagnosed with Type 1 diabetes, at various times of the day Rachel needed to take time off the shop floor to test her glucose levels and inject herself with insulin. Her manager was not happy about her leaving when customers were in her department regardless of how Rachel was feeling. She was told that she could only leave when it was quiet and that she would have to inject herself in the toilets as they were unable to provide a private and more appropriate area.
This was unworkable and Rachel knew her health would be at risk so she consulted with the advocacy worker at the state office of Diabetes Australia. She then went back to her employer and asked the human resources department to step in and help her negotiate a better arrangement. As a result of discussions between the human resources department, the manager and Rachel, it was resolved that Rachel could leave whenever she needed to and a private place was found for her to go to where she could inject herself safely and with dignity.
Simone's Story
Simone was aged 52 when she was diagnosed with breast cancer. She was working full time in a nursing home as a cook/kitchen assistant. While undergoing treatment she requested to work part time and eventually took several months leave without pay. Shortly before her planned return to work, she had a fall at home and was hospitalized for a few days after which her doctor allowed her to work but restricted her to light duties. Her employer said there were no light duties available in the kitchen and terminated her employment claiming she was unfit to return to her original duties.
Simone made a complaint of disability discrimination arguing that while her illness prevented her from doing her usual duties, she was still capable of performing the inherent requirements of the job because the task could be modified without altering the nature of her job. For instance, she would be able to cook soup in two or three smaller pots instead of one big pot, thereby avoiding the need to exceed her lifting restrictions. There was no evidence at the time of her dismissal that her employer would suffer unjustifiable hardship if her working hours were simply reduced or if her shift was changed to an earlier start when the work was much lighter.
Simone did not want to return to work and opted to receive compensation for loss of income as a resolution to her complaint.
It is lawful for an employer to discriminate against you on the basis of your disability or health condition:
- if you are unable to perform the 'inherent' or 'genuine and reasonable' requirements of the job
- if the 'special services or facilities' you need would cause your employer 'unjustifiable hardship'
- if you would still be unable to perform the 'inherent' or 'genuine and reasonable' requirements of your job when 'special services or facilities' have been provided.
What are 'inherent' or 'genuine and reasonable' requirements?
Inherent or genuine and reasonable requirements of a job generally mean the skills and abilities that are essential to performing the job you are applying for or to performing your work as an employee or independent contractor.
The factors that will be considered when determining whether you can perform the inherent or genuine and reasonable requirements of a job are your training, qualifications and experience as well as your current performance in the job if applicable.
What are 'special services or facilities'?
If you have any special needs, your employer is required to provide special services or facilities to meet those needs.
Special services or facilities are services or alterations to the workplace that are designed to help you perform the inherent or genuine and reasonable requirements of your job.
For example, special services or facilities may include modifying your workstation, installing a ramp for wheelchair access, or providing you with special equipment or aids.
What is 'unjustifiable hardship'?
Employers are not required to provide special services or facilities if doing so would cause them 'unjustifiable hardship'.
Determining what is unjustifiable hardship involves balancing various things, including the extent of the services or facilities required and how that will affect your employer, your employer’s business, other employees, clients and you. The financial circumstances of the employer and the estimated costs of the facilities or services will also be considered.
For example, a very small business may not be able to afford the cost of installing a lift in the premises if you cannot use stairs.
In what other circumstances is disability discrimination lawful in the workplace?
Federal and state anti-discrimination laws contain general ‘exceptions’ to discrimination (situations where discrimination is lawful). Examples of exceptions include:
- if a job involves providing domestic or personal services in a person's home, the employer can discriminate when deciding who should be offered the job
- if the job involves a dramatic or artistic performance, entertainment, or photographic or modelling work, the employer can discriminate if discrimination is necessary to maintain the authenticity or credibility of the work
- if the employer is the owner of the business, they can offer the job only to their relatives
- if the employer employs no more than the equivalent of five people on a full-time basis (including the person to whom employment is offered), they can discriminate when deciding who should be offered the job
- if the discrimination is necessary to protect the health or safety of others
- if the discrimination is necessary to comply with another law.
- The discrimination would not be unlawful under relevant anti-discrimination law (including the Commonwealth Disability Discrimination Act 1992 and the Victorian Equal Opportunity Act 1995); or
- The adverse action was taken because of the inherent requirements of the particular position concerned; or
- Where the adverse action was taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.
In what circumstances is disability discrimination lawful under the Fair Work Act?
Under the Fair Work Act, the protections against ‘adverse action’ being taken against an employee because of their disability do not apply where:
Next Section: Unlawful harassment and victimisation
