Disability discrimination

Disability discrimination

If you experience discrimination because of your disability, the law may be able to help you.

State and Commonwealth laws cover where and when disability discrimination is unlawful.

'Disability' has a specific definition under these discrimination laws.

Where discrimination is unlawful

Disability discrimination is unlawful in certain protected areas of public life. In general terms, these are:

  • employment – an employer cannot discriminate:
    • in their terms and conditions of employment
    • during the job application process
    • in promotion or dismissal.

For example, it may be unlawful to refuse employment to a courier because they cannot use a mobile phone to receive calls as they are deaf. See Disability discrimination and employment.

  • education – this includes enrolments and the educational facilities provided. For example, it may be unlawful for a school to refuse to accept your enrolment because you need some adjustments made to accommodate your cerebral palsy
  • access to premises used by the public – this includes libraries, government offices, hospitals, doctors’ surgeries, restaurants or shops. For example, public buildings should have wheelchair access
  • accommodation – if you rent a room, a flat, or a house. For example, it may be unlawful not to allow you to have a guide dog in your flat or room
  • goods, services and facilities – when you are shopping, obtaining services from anyone such as doctors, tradespeople, banks or government departments. For example, it may be unlawful to make a person with a disability wait until last to be served in a shop because of any extra time needed to serve them
  • clubs and associations – you cannot be discriminated against if you want to join a club or association. This includes their terms of membership. For example, it may be unlawful to refuse membership of a social club to a person because they have to use a wheelchair and need some help accessing the social club venues
  • sport – includes all sports except elite sports like the Olympics or other professional competitions and serious competitive sports. For example, if you have the skills to play cricket or swim competitively, you cannot be excluded because you have asthma or are deaf
  • local government – this includes being a councillor, and all aspects of council services, amenities, by-laws and programs.

When discrimination is unlawful

State and Commonwealth laws make it unlawful to:

  • directly or indirectly discriminate against a person because of their disability. See Discrimination and victimisation.
  • require a person with a disability to provide information or answer questions that might be used to discriminate against them – see Disability discrimination and employment
  • victimise a person because they have made a disability discrimination complaint.

Employers and people who provide goods, services and accommodation also have an obligation to make reasonable adjustments for people with a disability, so that they can have equal enjoyment and access to services, accommodation and work. See Disability discrimination and employment.

How the law defines disability

'Disability' has a specific definition under discrimination laws.

Under Victorian law, disability means:

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

Under the Commonwealth law disability means:

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

Both definitions include:

  • future disability, such as a condition that runs in your family that you may develop
  • ‘imputed’ disability, such as something that someone believes another person has, whether or not they do.

The Fair Work Act 2009 does not explicitly define the term ‘disability’. The courts have instead focused on the ordinary meaning of the word. Disability in this context has been understood as a particular physical or mental weakness or incapacity, which includes a condition which limits a person's movements, activities or senses.

More information

Victorian Equal Opportunity and Human Rights Commission

Australian Human Rights Commission

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