Australia: Disability Discrimination Act Review - Reasonably Effective But Still Some Room For Improvement

On 14 July 2004 the Productivity Commission released its inquiry report Review of the Disability Discrimination Act 1992, which looked into the effectiveness of the Disability Discrimination Act 1992 (Cth) ("DDA") over the past decade. The Commission found that while there is still room for improvement, particularly in reducing discrimination in employment, overall the DDA has been reasonably effective. The Commission's findings and recommendations provide some insight into potential reforms in this area.

The Commission made a number of recommendations to improve the efficiency and effectiveness of the DDA, and we look at the those most relevant to employment below.

The recent High Court decision of Purvis v New South Wales has cast doubt over the widely held presumption that organisations are obliged under the DDA to make reasonable adjustments to accommodate the needs of people with disabilities. The Commission found that the DDA cannot be relied upon to impose a duty to make reasonable adjustments. It recommended that the DDA be amended to expressly include such a duty but to exclude adjustments that would cause unjustifiable hardship.

Currently under the DDA, it is lawful to discriminate against an employee on the basis of disability if that person requires services or facilities to carry out the inherent requirements of the position and the provision of those services would impose an unjustifiable hardship on the employer.

Under the DDA what constitutes unjustifiable hardship involves a consideration of all relevant circumstances including:

• the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned;
• the effect of the disability of a person concerned;
• the financial circumstances of the person claiming unjustifiable hardship; and
• in cases involving the provision of services or facilities, an action plan submitted to the Commission and containing specified provisions, including those relating to the implementation and communication of policies.

The Commission recommended that the criteria for determining unjustifiable hardship in the DDA be expanded to:

• require consideration of the costs and benefits to all persons and an assessment of the net benefit to the community;
• include as a relevant circumstance, the availability of financial and other assistance of the person claiming unjustifiable hardship (eg. available Government assistance); and
• require all respondents to a complaint to prepare and submit an action plan to the Commission for consideration.

Presently, the inherent requirements and unjustifiable hardship defences are only applicable to the selection and/or termination of an employee, not in all employment-related situations.

The Commission found this may deter employers from employing people with disabilities, by limiting their ability to train, transfer and promote whom they choose. Consequently, the Commission recommended that the DDA be amended to allow these defences to be used throughout the DDA. This would include employment-related situations during employment as well as selection and termination.

The DDA currently states that a person indirectly discriminates against another person with a disability if he or she requires that person to comply with a requirement or condition:

• with which a "substantially higher proportion" of people without the disability are able to comply, referred to as the proportionality test;
• which is not reasonable having regard to the circumstances of the case; and
• with which that person is unable to comply.

The Commission recommended that this definition be amended to:

• remove the proportionality test;
• include criteria for determining whether a requirement or condition is unreasonable having regard to the circumstances;
• put the onus on the respondent (eg. the employer) to prove that a requirement or condition is reasonable; and
• cover incidences of proposed indirect discrimination.

If the Commission's recommendations in relation to indirect discrimination are implemented, then:

• a concept of "disadvantage" could replace the proportionality test;
• the DDA would contain a list of criteria for assessing reasonableness; and
• a complainant would not have to wait until a discriminatory requirement or condition was actually introduced before being able to bring a complaint.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.