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?
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.
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