The Disability Discrimination Act 1992 (Cth) provides a broad definition of disability as including physical, intellectual, psychiatric, sensory, neurological and learning disabilities that may be temporary or permanent, current or previously existing, visible or invisible.
Disability discrimination happens when people with a disability are treated less fairly than people without a disability. At work, this might be direct or indirect discrimination from an employer, co-worker or associate.
Direct discrimination in the workplace
Direct discrimination against a person with a disability can occur during employment or the recruitment process, for example, refusing or failing to hire a person because of their disability. It might include less favourable terms of employment, limited access to training, not being considered for a promotion, disciplinary action, dismissal, or being encouraged to retire or resign because of a disability.
Failure to make reasonable adjustments for a person with a disability is also a form of direct discrimination if the effect is that the person is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
Reasonable adjustments
Employers must make reasonable adjustments to the workplace if you need them to perform the inherent requirements of the role unless they can prove that the adjustment would cause major difficulties or unreasonable costs.
What is considered reasonable will depend on the situation, such as the adjustments required, the cost and the size of the company/employer.
Indirect discrimination in the workplace
When an employer creates conditions, standards or practices that seem to treat everyone fairly but disadvantage people because of their disability, indirect discrimination can occur. For example, if an employer requires a deaf employee to attend meetings without an Auslan interpreter, this could be indirect discrimination, as they may have difficulty participating in the meeting.
The disadvantageous treatment of an employee with a disability, either direct or indirect, is generally unlawful. Still, there are some exceptions, including where an employee's disability prevents them from performing the inherent requirements of a position.
Disability discrimination is prohibited
A person with a disability has a right to the same employment opportunities and safe working environment as a person without a disability. If you feel that you have been discriminated against because of your disability, your rights are protected by the law.
The primary source of protections for employees with disabilities is the Disability Discrimination Act 1992 (Cth), which prohibits discrimination in employment. However, there are also protections in state anti-discrimination legislation and the Fair Work Act 2009 (Cth).
One option is to seek the assistance of the Australian Human Rights Commission or your state-based equivalent. In Victoria, this is the Victorian Equal Opportunity and Human Rights Commission.
Employees who feel they have been dismissed due to a disability can commence proceedings in the Fair Work Commission for the adverse action taken because of a protected feature or attribute. This application must be filed within 21 days of your dismissal.
