In certain circumstances, federal and state anti-discrimination laws allow discrimination and specifically disability discrimination in the workplace.
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.
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:
- 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.
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