Direct discrimination

This occurs when:

Someone treats you less favourably (or proposes to) than they would treat someone else, in similar circumstances, who does not have a disability.
Your request for reasonable adjustments to be made to your workplace, school or other educational premises, or other public space so that you can participate or access services and activities, is not met.

Questions to consider

For it to be found that you have been treated less favourably because of your disability, there must be a clear connection between your disability and the discrimination you experienced.

Ask yourself:

Is your disability the reason why you are being treated less favourably?

- If you did not have a disability, how would the person treat you? Would it be different or the same?
- Is there another person who does not have a disability but is facing the same circumstances as you in employment, education or service provision? Compared to you, how was that person treated? Did that person get something you did not receive?
- Is there another reason why you are being treated less favourably?

IMPORTANT – If you are being treated less favourably because of your disability AND another reason, it will also be considered discrimination if your disability is a substantial reason. Substantial means your disability was a big factor.

Case study 4 – A medical condition does not mean inability to do the required work

Trindall v NSW Commissioner of Police,2005, Federal Magistrates Court of Australia

Facts: Bradley Trindall was a New South Wales police officer with an inherent sickle cell condition, an inherited disorder that affects red blood cells. Mr Trindall alleged that he was placed on restricted duties after a medical examination revealed the condition, and was at one stage threatened with discharge from the police force on medical grounds.

Decision: It was found that Mr Trindall was directly discriminated against on the basis of his disability. The Court found that the Police Medical Officer (PMO) who placed the unnecessary restrictions on him treated him less favourably than he would have treated someone in the same or a similar situation. The officer’s medical certificate stated that he was fit and healthy but needed to take precautions in some situations. The PMO failed to enquire about the precautions noted in the certificate where, in other situations, he would have.

Case study 5 – School made “flawed assumptions” in decision to not accept enrolment

Scarlett Finney v The Hills Grammar School, 2000, Australian Human Rights Commission

Facts: Scarlett Finney was born with Spina Bifida. In 1997 her parents, Bernadette and Scott Finney, sought to enroll her in the kindergarten class at a private school. The covering letter noted that she had Spina Bifida and required a school with certain specifications, for example wheelchair accessibility. Following an interview, the school informed her parents that it would not offer Scarlett a place, saying it did not have adequate resources to look after her in the manner she required.

Decision: The Commission found that the Hills Grammar School discriminated against Mr and Mrs Finney on the grounds of Scarlett’s disability. It described the school’s decision as “genuine but misguided”, “based on general and often flawed assumptions”. The Commission encouraged the parties to discuss settlement, however the school applied to the Federal Court for review of the decision. It dismissed the application, with costs.

Direct discrimination

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