Disability discrimination and employment

Disability discrimination and employment

State and Commonwealth laws make it unlawful for employers to:

  • take adverse action against an employee because they have a disability
  • require a person with a disability to provide information or answer questions that might be used to discriminate against them.

To make a complaint about disability discrimination in relation to employment, you need to show that your disability does not stop you doing what the job is essentially about.

This does not mean that you have to be able to meet all the requirements of the job, only those that are really essential to the job.

Taking adverse action

Discrimination in employment because of your disability is unlawful if you are able to meet the inherent or genuine requirements of the job.

For example, an essential part of a telephonist’s job is to be able to communicate by telephone. However, it is not an inherent or genuine requirement to hold the telephone in the hand.

When you are applying for a job, the employer has a responsibility to tell you what the essential requirements of the job are and to assess you against those requirements rather than other requirements.

Reasonable adjustments

In order to meet the requirements of a job, you might need some adjustments to be made to accommodate your disability.

An employer is not allowed to discriminate against you simply because you need adjustments to be made. There are obligations under anti-discrimination laws to make these adjustments if it is reasonable to do so.

Making reasonable adjustments requires an employer to balance the need for change with the expense or effort involved in making this change. If an adjustment requires a disproportionately high expenditure or disruption it is not likely to be reasonable.

Under the Victorian Equal Opportunity Act 2010, there are limited exceptions to the duties to make reasonable adjustments, which allow employers to discriminate if:

  • the adjustments are not reasonable
  • the person with the disability could not perform the genuine and reasonable requirements of the employment, even after reasonable adjustments are made
  • the activities comply with or are exempted from a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992.

Under the Disability Discrimination Act, an employer does not have to make the adjustment if it would be an ‘unjustifiable hardship’ for them to do so.

Examples of the sorts of adjustments that could reasonably be expected might be:

  • providing an enlarged computer screen for an employee with a vision impairment
  • lowering a workbench to accommodate an employee who has a wheelchair.

Discriminatory questions

Generally, it is unlawful for someone to ask you to give information that may be used to discriminate against you on the basis of your disability.

For example, it might be unlawful in a job interview for someone to ask questions about your disability unless:

  • the information is needed to ensure the health and safety of everyone at work, and everyone is asked to provide similar information.
  • the question is about adjustments that you might need to help you do the job, and to ensure that you are not treated unfavourably because of your disability.
  • the information is directly relevant to the inherent requirements of the position.

However, if your prospective employer asks questions about your disability, you have no legal obligation to disclose that you have a disability. If there is no link between your disability and your ability to perform the normal duties of the role, you do not need to let your employer know you have a disability.

If you have a disability that you think could impact on your employment, you need to ask your doctor about medical restrictions.

If your employer asks you about any pre-existing injury or illness that might affect your ability to perform normal duties, you are expected to disclose this disability. If you don’t, your entitlement to workers' compensation may be at risk if your condition recurs or deteriorates as a result of your work.

If your employer requests that you provide information about your disability, they must do so in a way that is fair and not intrusive. They must also:

  • tell you why they are asking for the information
  • advise you of any consequences if you don't provide the information. For example, you might risk missing out on workers' compensation if you're injured on the job
  • allow you access to your information
  • tell you who will receive copies of your information and notify you of their contact details.