Disability Discrimination Act

Disability Discrimination Act

A Brief Guide To The Disability Discrimination Act

What’s it all about

The Federal Disability Discrimination Act 1992 (D.D.A.) provides protection for everyone in Australia against discrimination based on disability. It encourages everyone to be involved in implementing the Act and to share in the overall benefits to the community and the economy that flow from participation by the widest range of people.

Disability discrimination happens when people with a disability are treated less fairly than people without a disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability.

What area of life does the D.D.A cover ?

The DDA makes it against the law to discriminate against someone if they have a disability in the following areas of life :

  • Employment. For example, when someone is trying to get a job, equal pay or promotion.
  • Education. For example, when enrolling in a school, TAFE, university or other colleges.
  • Access to premises used by the public. For example, using libraries, places of worship, government offices, hospitals, restaurants, shops, or other premises used by the public.
  • Provision of goods, services and facilities. For example, when a person wants goods or services from shops, pubs and places of entertainment, cafes, video shops, banks, lawyers, government departments, doctors, hospitals and so on.
  • Accommodation. For example, when renting or trying to rent a room in a boarding house, a flat, unit or house.
  • Buying land. For example, buying a house, a place for a group of people, or drop-in centre.
  • Activities of clubs and associations. For example, wanting to enter or join a registered club, (such as a sports club, RSL or fitness centre), or when a person is already a member.
  • Sport. For example, when wanting to play, or playing a sport.
  • Administration of Commonwealth Government laws and programs. For example, when seeking information on government entitlements, trying to access government programs, wanting to use voting facilities.

Who does the D.D.A protect?

The definition of “disability” in the DDA includes:

  • Physical
  • Intellectual
  • Psychiatric
  • Sensory
  • Neurological, and
  • Learning disabilities, as well as
  • Physical disfigurement, and
  • The presence in the body of
  • disease-causing organisms.

This broad definition is meant to ensure that everyone with a disability is protected.

The DDA covers a disability which people:

  • Have now,
  • Had in the past (for example: a past episode of mental illness),
  • May have in the future (eg: a family history of a disability which a person may also develop),
  • Are believed to have (for example: if people think someone has AIDS).

The DDA also covers people with a disability who may be discriminated against because:

  • They are accompanied by an assistant, interpreter or reader,
  • They are accompanied by a trained animal, such as a guide or hearing dog, or
  • They use equipment or an aid, such as a wheelchair or a hearing aid.

The DDA also protects people who have some form of personal connection with a person with a disability like
relatives, friends, carers and co-workers if they are discriminated against because of that connection or relationship. For example, it is unlawful discrimination if:

  • A parent is refused a job because the employer assumes he or she will need time off work to look after a child with a disability
  • People are refused access to a restaurant because they are with a friend who has a disability
  • A carer of a person with a disability is refused accommodation because of his or her association with the person with a disability
  • A worker is hassled about working with a person with a disability.
  • Harassment because of disability, such as insults or humiliating jokes, is unlawful in employment, education and in the provision of goods, services and facilities.

Earning a living

A person with a disability has a right to the same employment opportunities as a person without a disability.

The Disability Discrimination Act (DDA) makes it against the law for an employer to discriminate against someone on the grounds of disability.

What should employers do?

Employers must offer equal employment opportunities to everyone. This means that if a person with a disability can do the essential activities or “inherent requirements” of a job, he or she should have just as much chance to do that job as anyone else.

For example, an essential activity or “inherent requirement” for a telephonist’s job is the ability to communicate by telephone. But it is not an “inherent requirement’ to hold the phone in the hand.

Employers should choose the best person for the job, whether that person has a disability or not. They should make this decision based on a person’s ability to perform the essential activities of the job. They should not make assumptions about what a person can or cannot do because of a disability.

People with a disability are protected against discrimination in:

  • Recruitment processes such as advertising, interviewing, and other selection processes
  • Decisions on who will get the job
  • Terms and conditions of employment such as pay rates, work hours and leave
  • Promotion, transfer, training or other benefits associated with employment, or
  • Dismissal or any other detriment, such as demotion or retrenchment.

The DDA also covers contract work, and membership of partnerships of three or more people, as well as discrimination by:

  • Bodies with control over professional, trade or occupational qualifications
  • Federally registered trade unions, and
  • Employment agencies.

For example, it is unlawful for an employment agency not to refer a person with a disability to a job if he or she can do the job.

What about workplace changes?

If a person with a disability is the best person for the job then the employer must make workplace changes or “workplace adjustments” if that person needs them to perform the essential activities of the job.

In most cases the person with a disability will be able to tell the employer what is needed. If necessary, employers should also seek advice from government agencies or organisations which represent or provide services to people with a disability.

Examples of “workplace adjustments” employers may need to make include:

  • Changing recruitment and selection procedures. For example, providing a sign language interpreter for a deaf person, or ensuring the medical assessor is familiar with a person’s particular disability and how it relates to the job requirements.
  • Modifying work premises. For example, making ramps, modifying toilets, providing flashing lights to alert people with a hearing loss.
  • Changes to job design, work schedules or other work practices. For example, swapping some duties among staff, regular meal breaks for a person with diabetes.
  • Modifying equipment. For example, lowering a workbench or providing an enlarged computer screen.
    Providing training or other assistance. For example, induction programs for staff with a disability and
    co-workers, mentor or support person for a person with an intellectual disability, including staff with a disability in all mainstream training.

what if changes are too difficult for the employer?

The DDA does not require workplace changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called “unjustifiable hardship”.

  • Before considering claiming that adjustments are unjustified, employers need to:
  • Thoroughly consider how an adjustment might be made
  • Discuss this directly with the person involved, and
  • Consult relevant sources of advice.
  • If adjustments cause hardship it is up to the employer to show that they are unjustified.

Getting an education

A person with a disability has a right to study at any educational institution in the same way as any other student.

The DDA makes it against the law for an educational authority to discriminate against someone because that person has a disability.

This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions such as TAFE, private colleges and universities.

What should educators do?

Educators must offer a person with a disability the same educational opportunities as everyone else. This means that if a person with a disability meets the necessary entry requirements of a school or college he or she should have just as much chance to study there as anyone else.

Educators must base their decisions on a person’s ability to meet the essential requirements of the course. They should not make assumptions about what a person can or cannot do because of a disability.

The DDA protects people with a disability against discrimination in education in the following areas:

  • Admission
  • Refusal or failure to accept an application for admission from a person with a disability
  • Accepting a person with a disability as a student on less favourable terms or conditions than others. For
    example, asking a person with a disability to pay higher fees.

Access

Denying or limiting access to people with a disability. For example, not allowing a person to attend excursions or join in school sports, delivering lectures in an inaccessible format, inaccessible student common rooms.

Expelling a person because of a disability, or

Subjecting a person with a disability to any other detriment.

Harassment

Humiliating comments or actions about a person’s disability, such as insults, or comments or actions which create a hostile environment

What about course changes?

If a person with a disability meets the essential entry requirements, then educators must make changes or “reasonable adjustments” if that person needs them to perform essential course-work.

For example, a student may not be able to perform dissections in a biology course because the bench is too high. The ability to reach a certain height is not an essential part of dissection. The student would be perfectly capable of performing the tasks of the lab session if provided with a lower table.

In most situations the person with a disability will be able to tell educators what he or she needs to be able to study. If necessary, educators should also seek advice from government agencies or organisations which represent or provide services to people with a disability.

Adjustments could include:

  • Modifying educational premises. For example, making ramps, modifying toilets and ensuring that classes are in rooms accessible to the person with a disability.
  • Modifying or providing equipment. For example, lowering lab benches, enlarging computer screens, providing specific computer software or an audio loop system.
  • Changing assessment procedures. For example, allowing for alternative examination methods such as oral exams, or allowing additional time for someone else to write an exam for a person with a disability.
  • Changing course delivery. For example, providing study notes or research materials in different formats or providing a sign language interpreter for a deaf person.

What if changes are too difficult for educators?

The D.D.A. does not require changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called “unjustifiable hardship”.
Before considering to claim adjustments are unjustified, educators need to:

  • Thoroughly consider how an adjustment might be made
  • Discuss this directly with the person involved, and
  • Consult relevant sources of advice.

If adjustments cause hardship it is up to the education authority to show that they are unjustified.

What if changes are too difficult for educators?

The DDA does not require workplace changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called “unjustifiable hardship”.

Before considering claiming that adjustments are unjustified, employers need to:

  • Thoroughly consider how an adjustment might be made
  • Discuss this directly with the person involved, and
  • Consult relevant sources of advice.
  • If adjustments cause hardship it is up to the employer to show that they are unjustified.

Buying goods and using services

A person with a disability has a right to obtain goods and use services and facilities in the same way as people without a disability. This includes goods, services and facilities from:

  • Shops and department stores
  • Cafes, restaurants, pubs
  • Theatres and other places of entertainment
  • Banks, credit unions, building societies
  • Lawyers and legal services
  • Sports and social clubs
  • Swimming pools
  • Public transport
  • Travel agents
  • Dentists, doctors, and hospitals
  • Hairdressers and beauty salons
  • Government-run services.

What is expected?

The Disability Discrimination Act (D.D.A.) makes it against the law for providers of goods, services and facilities to discriminate against a person because of his or her disability.

This means that providers of goods, services and facilities cannot:

  • Refuse to provide a person with a disability with goods, services and facilities. For example, a person cannot be refused service in a restaurant because he or she has a guide dog. A person cannot be refused hospital treatment because he or she is HIV positive.
  • Provide goods, services and facilities on less favourable terms and conditions. For example, charging a person with a disability a higher kilometre rate for a taxi because he or she uses a wheelchair or not providing a TTY line for deaf people to contact emergency services.
  • Provide the goods, services and facilities in an unfair manner. For example, making insulting remarks while serving a person with a disability or serving a person with a disability after everyone else has been served.

It also means that a person with a disability has a right to enter the premises of providers of goods, services and facilities if people without a disability can do so.

Like other areas of the D.D.A. a defence of; “unjustifiable hardship”; may be available.

Joining in

Sport

A person with a disability has a right to take part in sporting activities in the same way as people without a disability.

This means a person with a disability must not be excluded from playing a sport if he or she is:

  • Capable of playing the sport, or
  • Selected to play the sport on the basis of his or her skills and abilities.

A person with a disability should also not be excluded from any administrative or coaching activities associated with the sport. For example, if a person with a disability has the necessary skills to play cricket or swim competitively, he or she cannot be excluded because of asthma or a hearing loss.

Club and associations

A person with a disability has a right to be a member of a club or association in the same way as a person without a disability. This includes sporting, social and licensed clubs, drama or music groups, political parties, business associations, and self-help groups.

What is expected?

The Disability Discrimination Act (D.D.A.) makes it against the law for clubs and associations to discriminate against a person because of his or her disability. This means clubs and associations cannot:

  • Refuse to accept an application for membership from a person with a disability
  • Provide membership on less favourable terms and conditions. For example, a club may want to offer a person with a disability part membership or charge that person more for membership.
  • Limit a person’s access to the benefits and activities offered by the club or association because that person has a disability. For example, restricting the activities a person with a disability can take part in or the hours he or she can use the club.

The Act also means that the premises and facilities of clubs and associations should be accessible to people with a disability. Like other areas of the D.D.A. a defence of “unjustifiable hardship” may be available.

A place to live

Accommodation

A person with a disability has a right to obtain accommodation in the same way as people without a disability. This includes renting a flat, house, unit, a room in a boarding house, hotel or motel.

what is expected?

The Disability Discrimination Act (D.D.A.) makes it against the law for real estate agents, landlords or landladies, and other providers of accommodation to discriminate against a person because of a disability.

This means that providers of accommodation cannot:

  • Refuse an application for accommodation from a person with a disability
  • Provide a person with a disability with accommodation on less favourable terms and conditions. For example, giving a person with a disability the least attractive room in the hotel or not allowing a person to keep his or her guide dog in a rented flat.
  • Put the application of a person with a disability on the bottom of the list. For example, giving an application a lower priority because it is assumed the person with a disability will be a less stable tenant.

Like other areas of the D.D.A. a defence of “unjustifiable hardship” may be available in some circumstances.

Buying Land

A person with a disability has a right to buy land in the same way as people without a disability.

The D.D.A. makes it against the law for a real estate agent, landowner, or other land and property agents to discriminate against a person because of his or her disability, or the disability of an associate.

This means that an agent or landowner cannot:

  • Refuse to sell land or property to a person with a disability. For example, refusing to sell a house to a person with a disability because neighbours object to the person’s disability or the disabilities of any group intending to use the house; or residents in a block of units refusing to sell a unit to a person because of his or her disability.
  • Offer land or property to a person with a disability on less favourable terms and conditions. For example, offering to sell land to a person with a disability at a higher price.

The ins and outs of access

A person with a disability has a right to have access to places used by the public.

The Disability Discrimination Act (DDA) makes it against the law for public places to be inaccessible to people with a disability.

Places used by the public include:

  • Public footpaths and walkways
  • Educational institutions
  • Shops and department stores
  • Banks, credit unions, building societies
  • Parks, public swimming pools, public toilets, and pedestrian malls
  • Cafes, restaurants, pubs
  • Theatres and other places of entertainment
  • Lawyers’ offices and legal services
  • Libraries
  • Sporting venues
  • Social and sporting clubs
  • Government offices
  • Public transport including trains, buses, ferries, boats, ships and planes
  • Dentists’ and doctors’ surgeries
  • Hospitals
  • Hairdressers and beauty salons
  • Travel agents, and
  • Government-run services

This applies to existing places as well as places under construction. To comply with the DDA existing places may need to be modified to be accessible (except where this would involve “unjustifiable hardship”).

What is expected?

Every area and facility open to the public should be open and available to people with a disability. They should expect to enter and make use of places used by the public if people without a disability can do so.

For example:

  • Places used by the public should be accessible at the entrance and inside
  • Facilities in these places should also be accessible (wheelchair-accessible toilets, lift buttons within reach, tactile and audible lift signals for people with vision impairments)
  • Rather than being confined to a segregated space or the worst seats, all areas within places used by the public should be accessible to people with a disability.
  • Information available to users of the premises should be accessible.

Examples of changes which have already taken place at the request of people with a disability include:

  • A local council built footpath ramps, altered stair areas, widened some path areas, and relocated post boxes and traffic signs to create a clear passage and access to three local shops.
  • A ramp was installed at the front door of a bank to enable a local customer to independently conduct her financial transactions.
  • Furniture in a college canteen was rearranged to enable a student easier access. The new arrangements meant improved traffic flow for everyone.
  • A shopping complex provided wayfinding information on how to get to the lifts.
  • A lift was adapted to provide tactile and audio information about floor numbers.

While changes may not happen overnight, people with a disability should expect that changes will be made. A person with a disability has every right to complain when they are discriminated against because a place used by the public is inaccessible.

What if providing access is too difficult?

The DDA does not require the provision of access to be made if this will cause major difficulties or excessive costs to a person or organisation. This is called “unjustifiable
hardship”.

But before deciding that providing access is unjustified, a person or organisation should:

  • thoroughly consider how access might be provided
  • discuss this directly with the person involved, and
  • consult relevant sources of advice.

If adjustments cause hardship it is up to the organisation to show that they are unjustified.

A responsible government

The Federal Disability Discrimination Act (D.D.A.) makes disability discrimination against the law in many areas of life.

This includes provision of services of a kind provided by government. All governments in Australia – Commonwealth, State, Territory and local government – have responsibilities under the D.D.A.

This includes:

  • Access to places where government programs are being run.
  • Equal access to information on laws and government programs.
  • Access to voting places, facilities and information
  • Access to court buildings

Complaints and conciliation

Complaints of disability discrimination are made to the Australian Human Rights Commission.

Complaints can be made by:

  • the person who claims he or she has been discriminated against
  • a person affected by discrimination – on his or her own behalf and on behalf of others affected in the same way
  • a person acting on behalf of another person or other people who claim they have been discriminated against (for example an advocate)
  • an organisation acting on behalf of a person or other people who claim they have been discriminated against (for example a trade union).

Making a complaint

The Commission’s Enquiry Officers can answer confidential enquiries over the telephone, but a formal complaint must at some point be made in writing (on paper or in electronic format).

The Commission can help a person put the complaint in writing, or the person’s union, advocate or friend can help write the complaint.

The person can also give a statement to the Commission in Braille, on video or audio tape, through an advocate, or verbally.

The Commission can also assist a person to make a complaint by providing:

  • community language interpreters including sign language interpreters, and
  • information on where a person can get advocacy support.
  • A written or verbal statement can be made in any language. It should state that the person has been discriminated against on the basis of disability, and it should describe what happened, when and where it happened, who was involved, and give the names of any witnesses.

Complaints handling

The Commission will investigate any complaints received that are within its area of responsibility. Where a complaint against a person or organisation appears to involve an unlawful act of discrimination, the Commission will write to the person or organisation to get their side of the story.

The Commission can also conduct an investigation if necessary. Sometimes the Commission may refer a complaint to another body.

Conciliation

If it appears that disability discrimination has occurred, the person or organisation will be asked to participate in a conference with a conciliator and the complainant in order to

help resolve the matter to the satisfaction of both parties. This is called conciliation.
A solicitor is not needed, but either party can engage one if they wish.

Depending on the complaint conciliation may result in:-

  • changes in policies or practices
  • job reinstatement
  • job promotion
  • an apology
  • withdrawal of the complaint
  • payment of damages, and/or
  • some other outcome.

Where a complaint cannot be resolved by conciliation, you can take your complaint to the Federal Court for an enforceable ruling if you choose to.

The above information has been sourced from the Australian Human Rights Commission’s website – www.hreoc.gov.au