What is disability discrimination?

Disability discrimination means that someone treats you unfairly or less favourably because of your disability.

Discrimination may not always be unlawful – there are exemptions, such as some court rulings or matters to do with public health – but unlawful discrimination applies most often to complaints about the workplace, educational institutions and access to public spaces.

The following are the laws that apply to and deal with unlawful disability discrimination in Victoria:

Victorian law – the Equal Opportunity Act 2010 of Victoria
Commonwealth law – the Disability Discrimination Act 1992
For employment cases – the Fair Work Act 2009.

Case study 2 – Unequal access to training and promotion is discriminatory

Garity v Commonwealth Bank of Australia, 1999, Human Rights & Equal Opportunity Commission

Facts: Sally Garity began work with the Commonwealth Bank in 1989. She had a vision impairment, with no sight in the right eye and 40 per cent sight in the left. She told the Commission that, from the very first day at the bank, she received no effective training and, over time, no promotion opportunities. It was only when she was transferred to the Central Branch five years later that she had a full picture of the information, training and support she had not had access to, for example, staff circulars and memos, staff meetings and training programs. She formed the view that no one cared about the quality of her work, her requests for assistance or about her personally.

Decision: The Commission found that Mrs Garity had been discriminated against in not being given equal access to promotional and training opportunities. She was awarded $153,500 damages.

Case study 3 – Withdrawing a job offer due to an imputed condition is discrimination

Gordon v Commonwealth of Australia, 2008, Federal Court of Australia

Facts: Mark Gordon was offered a position as a GST Compliance Officer at the Australian Tax Office (ATO), subject to satisfying a medical assessment. Subsequent medical tests indicated that Mr Gordon suffered from severe high blood pressure. As a result, the ATO withdrew the job offer, saying the condition would affect his ability to drive and therefore his capacity to fulfill the job requirements.

Decision: The Court found that the medical reports produced by the ATO’s doctor did not accurately depict Mr Gordon’s blood pressure and that he had suffered from what is known as ‘white coat syndrome’, anxiety when undergoing medical assessments. As a result, his blood pressure was temporarily raised when the readings were taken. Although he did have slightly raised blood pressure in other circumstances, the Court found this could be appropriately treated with medication and would not hinder his capacity to perform the job requirements.

It was held that the ATO had terminated his employment on the basis of an imputed disability (severe hypertension) – that is, one he did not actually have.

The Court did not order reinstatement, given that five years had passed since the job offer had been withdrawn and that Mr Gordon now had another job, but he was awarded significant damages.

What is disability discrimination?

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