Employment Discrimination

1. Disability Discrimination law in Employment and Education Joanna Shulman Principal Solicitor NSW Disability Discrimination Legal Centre

2. Overview • Disability Discrimination Law Generally • Employment Complaints 3. Education Complaints

3. Commonwealth Law: Disability Discrimination Act 1992 (DDA) NSW Law: Anti-Discrimination Act 1977 (ADA)

5. 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

6. 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 complainant’s disability?

7. 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?

8. 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)

9. 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

10. 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 you’re not sick now • Scarring and deformity

11. 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)

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

13. 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

14. 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

15. 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.

16. 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.

17. 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.

18. ‘Defences’ in Employment Discrimination 1. When a person can’t 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

19. ‘Defences’ in Employment Discrimination 2. Detrimentaltreatment 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 applicant’s absence from work was a manifestation of her depressive illness.

20. 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

21. 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 student’s 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

22. 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”.

23. 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

24. ‘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?

25. 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.

26. 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 Qld[2005] 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.’

27. 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.

28. QUESTIONS ????

29. Contact details • Telephone: (02) 9310 7722 Toll free: 1800 800 708 (outside Sydney) • TTY (02) 9310 4320 Toll free TTY 1800 644 419 (outside Sydney) • Email info@ddlcnsw.org.au • www.ddlcnsw.org.au