Victoria Legal Aid

Disability discrimination and employment

It is unlawful to take adverse action against an employee or potential employee because they have a disability.

It is against the law for employers to:

  • take ‘adverse action’ (for example dismiss you from your employment or offer you fewer shifts) because you have a disability
  • ask you to give information or answer questions about your disability if this information might be used to discriminate against you.

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

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 against the law if you can meet the ‘inherent or genuine’ requirements of the job. These refer to the tasks or skills that are essential to your role and the workplace.

For example, an ‘essential’ part of a telephonist’s job is to be able to communicate by telephone. However, it is not necessary for them to hold the telephone in their hand.

When you are applying for a job, the employer has a responsibility to tell you what the ‘essential’ needs of the job are and to see if you can meet those needs.

Reasonable adjustments

To do your job, you might need your employer to make changes to the workplace to accommodate your disability. These are called ‘reasonable adjustments’.

An employer is not allowed to discriminate against you simply because you need adjustments made to suit your particular needs. However not all adjustments will be considered reasonable. Your employer may not be forced to make certain adjustments to the workplace if it would be too expensive, difficult or time consuming for them.

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 make work easier for an employee who uses a wheelchair.

Discriminatory questions

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

For example, it might be against the law 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 changes to the workplace or equipment that you might need to help you do the job, and to make sure that you are not disadvantaged because of your disability
  • the information is directly relevant to what is needed for the position.

However, if the employer asks questions about whether you have a disability, you do not need to tell them, unless it might prevent you from being able to do the job.

If you have a disability that you think could make it difficult for you to work in certain jobs, you should talk to your doctor about this.

If your employer asks you about any pre-existing injury or illness that might make it hard to do the job, you should tell them about your disability. If you don’t, this might affect your right to access to compensation later if your condition returns or gets worse over time.

If your employer asks you to provide information about your disability, they must do so in a way that is fair. 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 know about this information and give you their contact details.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 12 April 2022

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