Disability Discrimination law in Employment and Education

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Disability Discrimination law in Employment and
Education Joanna Shulman Principal Solicitor
NSW Disability Discrimination Legal Centre
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• Overview
• Disability Discrimination Law Generally
• Employment Complaints
• 3. Education Complaints

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• Commonwealth Law
• Disability Discrimination Act 1992 (DDA)
• NSW Law
• Anti-Discrimination Act 1977 (ADA)

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• General statement of the law
• It is unlawful to discriminate against a person
  on the basis of one of the specified grounds in
  one of the specified areas of activity unless you
  can satisfy one of the defences

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• Types of Discrimination
• 1. Direct Discrimination
• Occurs where you treat somebody less favourably
  because of their disability.
• The test
• How would you treat a person in the same or
  similar circumstances who does not have the
  complainants disability?

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• 2. Indirect Discrimination
• Occurs where you impose a rule on everyone which
  has a harsher effect on people with a disability.
  
• The test
• Is it harder for a greater proportion of
  individuals with a particular disability to
  comply with the rule?
• Is the rule reasonable in the circumstances?

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• 3. Victimisation
• The law prohibits treating a person in a
  detrimental manner because they have asserted
  their rights under discrimination law
• Also applies to witnesses
• Victimisation is an offence (6 months
  imprisonment)

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• 4. Harassment in the workplace, education and in
  the provision of goods and services
• Disability - unlawful to harass another employee,
  commission worker, contractor worker or a job
  applicant on basis of disability

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• What does Disability include?
• Physical - loss of mobility or part of the body
• Neurological - including loss of or limited
  control of body actions
• Sensory - Deafness, loss of speech, hearing or
  eyesight
• Psychological disabilities
• Anything that makes it difficult to remember,
  learn or understand
• Disease, illness or infections - even if youre
  not sick now
• Scarring and deformity

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• Areas of activity
• Employment (including union membership,
  contractors etc)
• Education
• Goods, services and facilities (Federal) / Goods
  and services (State)
• Access to premises
• Accommodation
• Buying land (Federal)
• Sports
• Requests for information
• Registered clubs
• Commonwealth laws and programs (Federal only)

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• When is discrimination lawful?
• Generally
• When it is too hard to avoid discriminating -
  unjustifiable hardship
• When an exemption or exception exists in the law

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• What is meant by unjustifiable hardship
• Section 11 of the DDA says that you take into
  account all relevant circumstances of the
  particular case including
• the nature of the benefit or detriment to accrue
  or be suffered by persons involved, and
• the effect of the disability of the person
  concerned, and
• the financial circumstances and estimated amount
  of expenditure to be made by person claiming
  unjustifiable hardship, and
• (in the case of provision of services/facilities)
  an action plan given to HREOC

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• Areas of Activity Employment
• Points to Consider before lodging a complaint
• Is it unlawful discrimination- Employee, job
  applicant or contractor
• DDA or ADA Less than five employees?
• Other employment law rights- unlawful
  termination, unfair/constructive dismissal,
  workers compensation, common law employment
  rights
• Would Unlawful termination, Unfair Dismissal
  Constructive Dismissal get them a better outcome?
• 4. Victimisation

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• Areas of Activity - Employment
• Applicants for Employment
• Unlawful to discriminate in the arrangements made
  for the purpose of determining who should be
  offered employment
• Vickers v The Ambulance Service of NSW
  2006 FMCA 1232
• There cannot be a blanket policy of not
  employing persons with a particular impairment in
  particular positions must allow disability to
  be assessed.
• Also applies to all administrative and related
  steps up to the interview process
• Wording of advertisements, interviewing
  processes, selection process etc.
• cont.

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• Areas of Activity - Employment
• Applicants for Employment- its unlawful to
  discriminate
• In determining who should be offered employment
• In the terms or conditions on which employment is
  offered.

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• Against Employees
• Unlawful to discriminate on the basis of
  disability
• in the terms or conditions of employment that the
  employer affords the employee or
• by denying the employee access, or limiting the
  employee's access, to opportunities for
  promotion, transfer or training, or to any other
  benefits associated with employment or
• by dismissing the employee- or
• by subjecting the employee to any other
  detriment.

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• Defences in Employment Discrimination
• 1. When a person cant actually do a job -
  inherent requirements
• AND
• Necessary accommodations would cause
  unjustifiable hardship
• (Only applies at point of hiring and firing)
• Onus on respondent
• Inherent Requirement Whether the position
  would be essentially the same if that requirement
  was dispensed with Qantas Airways v Christie
  (1998) 193 CLR 280
• Inherent requirements do not need to be
  particularised at time of employment Vickers v
  The Ambulance Service of NSW 2006 FMCA 1232
• No requirement to modify type of employment to
  meet needs of disabled employee Cosma v Qantas
  Airways 2002 FCA 640

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• Defences in Employment Discrimination
• 2. Detrimental treatment not because of
  disability performance issues, redundancies
• 3. Comparator is someone who exhibits same
  manifestations of disability
• Purvis
• Forbes v Australian Federal Police (Commonwealth
  of Australia) 2004 FCAC 95, the comparator was
  a non-disabled employee who had been absent from
  work for a long period and whose relationship
  with the AFP had irretrievably broken down,
  despite the fact that the applicants absence
  from work was a manifestation of her depressive
  illness.

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• Areas of Activity Education
•        
• Student (not parent)
• DDA or ADA? - Private educational authority/
  Education Stds
• Other Avenues to resolve dispute Breach of
  privacy, common law, internal reviews etc
•     
•     

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• Areas of Activity Education
•        
• Unlawful to discriminate against a student on the
  basis of disability, or on basis of disability of
  an associate in
• accepting the student for admission to a school
  or on terms of condition of admission
• by denying the student access, or limiting the
  students access, to any benefit provided by the
  educational authority or
•      by expelling the student or
•      by subjecting the student to any other
  detriment, or
•      by developing curricula or training courses
  having a content that will either exclude the
  person from participation, or subject the person
  to any other detriment or
•        by accrediting curricula or training
  courses having such a content.
• Unjustifiable Hardship Defence Applies  
•     
•     

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• Disability Standards for Education 2005
• Compliance with education standard is compliance
  with DDA
• Non-compliance is a breach of DDA
• Expressly requires reasonable adjustments,
  obligation to consult and not to harass or
  victimise.
• Covers broad range of education providers
  public, private, secondary, tertiary, community
  colleges
• Standard will not necessarily provide a
  complete code that displaces all application of
  the DDA. Will depend on terms of the particular
  standard, the particular circumstances of the
  case and judicial interpretation of in
  accordance with.

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• Main changes heralded by the Education Standard
• Applies to all education providers
• Applies to all aspects of education
• (Potentially) a clearer outline of duties and
  rights for education providers and students
• Encourages a transparent, balanced and
  consultative approach to making adjustments
  between the education provider and the student
• Requires pro-active measures, especially to
  prevent harassment and victimisation

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• Grey areas
• Public health exception very broad danger of
  being applied too hastily and inhumanely
  (solitary confinement!)
• In terms of an adjustment, what is reasonable?
• How broad is the requirement to consider others
  affected by the adjustment?
• What is meant by reasonable timeliness in
  providing the adjustment?
• What will consulting the student require?
• Are university clubs, eating facilities (uni
  owned and branded), off-site curriculum/assessment
  tasks, uni sporting teams covered?
• What about overseas students? What about overseas
  campuses?

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• What to Do About Purvis?
• Purvis v DET (2003) 202 ALR 133
• While the definition of disability includes
  behavioural manifestations, when considering
  whether direct discrimination occurred it is
  necessary to compare the treatment of the student
  with the disability with a student who exhibited
  the violent behaviour but did not have the
  disability.
• Makes direct discrimination cases where student
  has behavioural disabilities hard to run.

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• What to Do About Purvis?
• Still have indirect discrimination cases
• Ferguson v Department of Education 2005 FMCA
  TAFE required Mr Fergurson (who was profoundly
  deaf) to comply with a requirement that he
  undertake his learning and complete his course
  within a reasonable time without the benefit of a
  needs assessment.
• Hurst and Devlin v Education Qld2005 FCA 405
  The respondents imposed a requirement that the
  applicants receive their education in English
  without the assistance of an Auslan teacher or
  interpreter.
• Hinchliffe v University of Sydney 2004 FMCA
  85 The Applicant undertake her university
  studies without all of her course materials being
  provided in an alternative format, either at all
  or at the same time as other students received
  their course materials.

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• Conciliating Education Cases
• Keep Expectations reasonable- schools are
  constrained by budgets and resources
• Early conciliations are better
• Be creative in suggestions for resolution check
  HREOC Conciliated outcomes page
• Focus on the Future- Education plans, Alternative
  disciplinary procedures, behaviour management
  plans, timetable for consultation with parents.
• Compensation is rare
• Be extra- careful with broad confidentiality
  clauses which cannot be complied with because of
  need to seek medical treatment etc.

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• QUESTIONS ????

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• Contact details
• Telephone [phone]
• Toll free 1800 800 708 (outside Sydney)
• TTY [phone]
• Toll free TTY 1800 644 419 (outside Sydney)
• Email info_at_ddlcnsw.org.au
• www.ddlcnsw.org.au