Is your Disability or Health Condition Covered by the Legal Definition of ‘Disability’ or ‘Impairment’?

Federal and state anti-discrimination laws define disability in slightly different ways. However, the definitions are very broad, and include past, present, future and imputed disability. These terms are explained in more detail below.

What is the meaning of ‘impairment’?

Under the Victorian Equal Opportunity Act 1995, disability is referred to as ‘impairment’ and includes:

1. a total or partial loss of a bodily function or a part of the body
2. the presence in the body of organisms that may cause disease
3. a malfunction of a part of the body, including:
   1. a mental or psychological disease or disorder
   2. a condition or disorder that results in the person learning more slowly than a person who does not have the condition or disorder
4. a malformation or disfigurement of a part of the body.

What is the meaning of ‘disability’?

Under the Commonwealth Disability Discrimination Act 1992, ‘disability’ includes the following:

1. a total or partial loss of the person’s bodily or mental functions or a part of the body
2. the presence in the body of organisms causing or capable of causing disease or illness
3. a malfunction, malformation or disfigurement of a part of the person’s body
4. a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction
5. a disorder, illness or disease that affects the person’s thought processes, perception of reality, emotions or judgment, or which results in disturbed behaviour.

What are the meanings of ‘future’ and ‘imputed’ disability?

It is unlawful for you to be discriminated against in the workplace on the basis of a disability or health condition that you:

1. have had in the past
2. currently have
3. may have in the future.

Discrimination on the basis of a future disability occurs when an employer believes that you may or will contract a disease in the future.

For example, an employer cannot impute (assume) that you will develop HIV simply because you are male and gay.

It is also unlawful for you to be discriminated against because an employer assumes that you have a disability.

For example, an employer cannot assume that you have a learning disability or mental illness just because you speak slowly or have a speech impediment. Doing so is discrimination on the basis of an ‘imputed disability’.

If you are discriminated against on the basis of an ‘imputed’ disability or disabling health condition, you are still protected under the federal and state anti-discrimination laws.

What is covered by the Fair Work Act?

The Fair Work Act protects persons suffering from a ‘physical or mental disability’.

Next Section: Have you experienced ‘direct’ or ‘indirect’ discrimination?