Difference between direct and indirect discrimination

Direct discrimination occurs when you complain that the discriminator treats you differently, in a way that causes you a disadvantage.

For example, you and a person without a disability have the same qualifications and skills, but the employer chose the other because the employer thought that your disability would cause you to take a lot of time off.

Indirect discrimination is where you complain that the discriminator is treating you the same as everyone else and it puts you at a disadvantage because of your disability.

For example, you did not get the job because it requires all workers to have a driver’s licence. If your disability prevents you from driving, the requirement to obtain a driver’s licence is unreasonable, or puts you at a disadvantage, if driving is not an essential part of your duties.

It is not your job to prove what is reasonable. The law requires the discriminator to prove that:

  • the condition or requirement you are asked to do or meet is NOT unreasonable, or
  • the adjustments you requested for your disability are NOT unreasonable.

 

What is a ‘reasonable adjustment’?

If your disability stops you from performing an essential or inherent requirement of the job, then you need to advise your employer, and ask for adjustments so that you can.

The employer is not allowed to discriminate against you simply because you require reasonable adjustments. Education authorities and goods and services providers are also required to make changes so that a person with disability can access education and services.

These changes are known as reasonable adjustments. Here are some examples.

At work: 

The Victorian Equal Opportunity and Human Rights Commission says some adjustments that an employer may need to make to the workplace include:

  • reviewing and, if necessary, adjusting the performance requirements of the job
  • being flexible with work hours
  • providing equipment and internet access for employees with hearing or speech impairments to access the National Relay Service to make and receive phone calls
  • purchasing screen reading software for employees with a vision impairment
  • approving more regular breaks for people with chronic pain or fatigue
  • buying desks with adjustable heights for people using a wheelchair.

In education:

If your disability prevents you from learning or being examined in the same way that other students without disability do, the school or university needs to make adjustments.

Examples given by the Australian Disability Clearinghouse on Education and Training include:

  • providing information or course materials in accessible format, such as a text book in Braille
  • changes in teaching practices, e.g. wearing an FM microphone to enable a student to hear lectures
  • supplying specialised equipment or services, such as a notetaker for a student who cannot write
  • changes in lecture schedules and arrangements, including relocating classes to an accessible venue
  • changes to course design, such as substituting an assessment task
  • modifying the physical environment, including from installing lever taps to building ramps and installing a lift
  • modifying computer equipment in the library.

In the provision of services:

Adjustments to make services accessible may include:

  • installing a ramp or lift so people can access buildings
  • allowing an assistance dog regardless of any policy prohibiting animals
  • providing an Auslan Interpreter for a Deaf person in the audience attending a presentation
  • not charging costs of admission to the carer of a person who has complex needs.

 

What if they cause hardship to provide?

Adjustments required for people with disability must be considered reasonable.

The employer, authority and/or service provider can refuse to provide adjustments for you if it would cause them unjustifiable hardship.

There are many factors to consider in working out if an adjustment will cause unjustifiable hardship, including:

  • how much it will cost to make the adjustment
  • the resources of the person or organisation making the adjustment
  • the nature of your disability and how you would be disadvantaged if the adjustment was not provided
  • the benefits the adjustment will have for you and other people with a disability
  • the disadvantages the adjustment will have for other people who may be affected.

The Australian Human Rights Commission later commented:

“This case demonstrates how the court interprets and applies the exemption of unjustifiable hardship and what factors are considered. This case was a disappointing decision for many and highlights the fact that the Disability Discrimination Act, while designed to promote equality, does not require 100 per cent accessibility, allowing for the application of certain exemptions.”

 

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