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A Brief Guide to the Federal Disability Discrimination Act 1992

This Guide is only applicable for those staff employed in UCL Australia

A Brief Guide to the Federal Disability Discrimination Act 1992
(adapted from the Australian Human Rights Commission)
http://www.hreoc.gov.au/disability_rights/dda_guide/dda_guide.htm

1. Introduction

The Federal Disability Discrimination Act 1992 (D.D.A.) provides protection for everyone in Australia against discrimination based on disability. It encourages everyone to be involved in implementing the Act and to share in the overall benefits to the community and the economy that flow from participation by the widest range of people.

Disability discrimination happens when people with a disability are treated less fairly than people without a disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability.

2. What areas of life does the D.D.A. cover?

The DDA makes it against the law to discriminate against someone if they have a disability in the following areas of life, relevant to UCL Australia:

  • Employment.
  • Education.
  • Access to premises used by the public, including educational establishments
  • Provision of goods, services and facilities.

3. Who does the D.D.A. protect?

The definition of "disability" in the DDA includes:

  • Physical
  • Intellectual
  • Psychiatric
  • Sensory
  • Neurological, and
  • Learning disabilities, as well as
  • Physical disfigurement, and
  • The presence in the body of disease-causing organisms.

This broad definition is meant to ensure that everyone with a disability is protected.
The DDA covers a disability which people:

  • Have now,
  • Had in the past (for example: a past episode of mental illness),
  • May have in the future (eg: a family history of a disability which a person may also develop),
  • Are believed to have (for example: if people think someone has AIDS).

The DDA also covers people with a disability who may be discriminated against because:

  • They are accompanied by an assistant, interpreter or reader,
  • They are accompanied by a trained animal, such as a guide or hearing dog, or
  • They use equipment or an aid, such as a wheelchair or a hearing aid.

The DDA also protects people who have some form of personal connection with a person with a disability like relatives, friends, carers and co-workers if they are discriminated against because of that connection or relationship. For example, it is unlawful discrimination if:

  • A parent is refused a job because the employer assumes he or she will need time off work to look after a child with a disability
  • People are refused access to a restaurant because they are with a friend who has a disability
  • A carer of a person with a disability is refused accommodation because of his or her association with the person with a disability
  • A worker is hassled about working with a person with a disability.

Harassment because of disability, such as insults or humiliating jokes, is unlawful in employment, education and in the provision of goods, services and facilities

4. Employment Matters

Employers must offer equal employment opportunities to everyone. This means that if a person with a disability can do the essential activities or "inherent requirements" of a job, he or she should have just as much chance to do that job as anyone else.

For example, an essential activity or "inherent requirement" for a telephonist's job is the ability to communicate by telephone. But it is not an "inherent requirement' to hold the phone in the hand.

Employers should choose the best person for the job, whether that person has a disability or not. They should make this decision based on a person's ability to perform the essential activities of the job. They should not make assumptions about what a person can or cannot do because of a disability.

People with a disability are protected against discrimination in:

  • Recruitment processes such as advertising, interviewing, and other selection processes
  • Decisions on who will get the job
  • Terms and conditions of employment such as pay rates, work hours and leave
  • Promotion, transfer, training or other benefits associated with employment, or
  • Dismissal or any other detriment, such as demotion or retrenchment.

The DDA also covers contract work, and membership of partnerships of three or more people, as well as discrimination by:

  • Bodies with control over professional, trade or occupational qualifications
  • Federally registered trade unions, and
  • Employment agencies.

For example, it is unlawful for an employment agency not to refer a person with a disability to a job if he or she can do the job.

5. What about workplace changes?

If a person with a disability is the best person for the job then the employer must make workplace changes or "workplace adjustments" if that person needs them to perform the essential activities of the job.

In most cases the person with a disability will be able to tell the employer what is needed. If necessary, employers should also seek advice from government agencies or organisations which represent or provide services to people with a disability.

Examples of "workplace adjustments" employers may need to make include:

  • Changing recruitment and selection procedures. For example, providing a sign language interpreter for a deaf person, or ensuring the medical assessor is familiar with a person's particular disability and how it relates to the job requirements.
  • Modifying work premises. For example, making ramps, modifying toilets, providing flashing lights to alert people with a hearing loss.
  • Changes to job design, work schedules or other work practices. For example, swapping some duties among staff, regular meal breaks for a person with diabetes.
  • Modifying equipment. For example, lowering a workbench or providing an enlarged computer screen.
  • Providing training or other assistance. For example, induction programs for staff with a disability and co-workers, mentor or support person for a person with an intellectual disability, including staff with a disability in all mainstream training.

6. What if changes are too difficult for the employer?

The DDA does not require workplace changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called "unjustifiable hardship".

Before considering claiming that adjustments are unjustified, employers need to:

  • Thoroughly consider how an adjustment might be made
  • Discuss this directly with the person involved, and
  • Consult relevant sources of advice.

If adjustments cause hardship it is up to the employer to show that they are unjustified.
More detailed information on employment is also available on the Commission website

7. Getting an education - student rights

A person with a disability has a right to study at any educational institution in the same way as any other student.

The DDA makes it against the law for an educational authority to discriminate against someone because that person has a disability.

This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions such as TAFE, private colleges and universities.

8. What should educators do?

Educators must offer a person with a disability the same educational opportunities as everyone else. This means that if a person with a disability meets the necessary entry requirements of a school or college he or she should have just as much chance to study there as anyone else.

Educators must base their decisions on a person's ability to meet the essential requirements of the course. They should not make assumptions about what a person can or cannot do because of a disability.

The DDA protects people with a disability against discrimination in education in the following areas:

9. Admission

  • Refusal or failure to accept an application for admission from a person with a disability
  • Accepting a person with a disability as a student on less favourable terms or conditions than others. For example, asking a person with a disability to pay higher fees.

10. Access

  • Denying or limiting access to people with a disability. For example, not allowing a person to attend excursions or join in school sports, delivering lectures in an inaccessible format, inaccessible student common rooms.
  • Expelling a person because of a disability, or
  • Subjecting a person with a disability to any other detriment.

11. Harassment

  • Humiliating comments or actions about a person's disability, such as insults, or comments or actions which create a hostile environment.

12. What about course changes?

If a person with a disability meets the essential entry requirements, then educators must make changes or "reasonable adjustments" if that person needs them to perform essential course-work.

For example, a student may not be able to perform dissections in a biology course because the bench is too high. The ability to reach a certain height is not an essential part of dissection. The student would be perfectly capable of performing the tasks of the lab session if provided with a lower table.

In most situations the person with a disability will be able to tell educators what he or she needs to be able to study. If necessary, educators should also seek advice from government agencies or organisations which represent or provide services to people with a disability.

Adjustments could include:

  • Modifying educational premises. For example, making ramps, modifying toilets and ensuring that classes are in rooms accessible to the person with a disability.
  • Modifying or providing equipment. For example, lowering lab benches, enlarging computer screens, providing specific computer software or an audio loop system.
  • Changing assessment procedures. For example, allowing for alternative examination methods such as oral exams, or allowing additional time for someone else to write an exam for a person with a disability.
  • Changing course delivery. For example, providing study notes or research materials in different formats or providing a sign language interpreter for a deaf person.

13. What if changes are too difficult for educators?

The D.D.A. does not require changes to be made if this will cause major difficulties or unreasonable costs to a person or organisation. This is called "unjustifiable hardship". Before considering to claim adjustments are unjustified, educators need to:

  • Thoroughly consider how an adjustment might be made
  • Discuss this directly with the person involved, and
  • Consult relevant sources of advice.

If adjustments cause hardship it is up to the education authority to show that they are unjustified.

More information is also available on the Commission website

For more detailed information on disability rights and responsibilities in Australia go to http://www.hreoc.gov.au/disability_rights/index.html