Disability and discrimination
What is a disability defined as?
The Disability Discrimination Act (DDA) and Anti-Discrimination Act (ADA) use different definitions of disability.
Anti-Discrimination Act (ADA) (NSW 1977) defines a disability as:
- Total or partial loss of a person’s bodily or mental functions or of a part of a person’s body; or
- The presence in a persons body of organisms causing or capable of causing disease or illness; or
- The malfunction, malformation or disfigurement of a part of a person’s body; or
- A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or
- A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour
Disability Discrimination Act (DDA) (Commonwealth 1992) defines a disability as:
- Total or partial loss of the person’s bodily or mental functions; or
- Total or partial loss of a part of the body; or
- The presence in the body of organisms causing disease or illness; or
- The presence in the body of organisms capable of causing disease or illness; or
- The malfunction, malformation or disfigurement of a part of the person’s body; or
- A disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
- A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment, or that results in disturbed behaviour, and includes a disability that:
- Presently exists; or
- Previously existed but no longer exists; or
- May exist in the future; or
- Is imputed to a person
The DDA and ADA also cover:
Future disability: A condition which runs in the family which you may develop in the future.
Imputed disability: Something someone believes another person has, whether or not they do. For example, someone may believe a gay man has HIV/AIDS.
Temporary disability: A disability that exists for a short period of time and isn’t permanent. Temporary disability may also be treated as a past disability if adverse treatment continues after the disability ceases.
Associates: If someone associated with a person with a disability is treated differently because of their association, the treatment of the ‘associate’ may be unlawful.
What is disability discrimination?
Two laws make disability discrimination unlawful in NSW:
Disability Discrimination Act 1992 (DDA)
A Federal Act that applies everywhere in Australia. It is administered by the Australian Human Rights Commission (AHRC), formerly known as the Human Rights & Equal Opportunity Commission (HREOC).
This Act is applied to:
- Access to premises
- Accommodation
- Clubs and association
- Commonweath laws and programs
- Education
- Employment and related areas
- Goods, services and facilities
- Land
- Sport
See more information about these areas below.
Anti-Discrimination Act 1977 (ADA)
The state legislation, similar to the DDA which is administered by the Anti-Discrimination Board (ADB).
This Act applies to:
- Accommodation
- Employment and related areas
- Education (excluding private schools)
- Goods, services and facilities
- Local government
- Registered clubs
See more information about these areas below.
The DDA and ADA also cover working arrangements for:
- Commission agents
- Contract workers
- Partnerships
- Union membership
- Employment agencies
- Qualifying bodies
Accommodation
This includes residential and business accommodation and covers:
- Applications for accommodation
- Terms on which accommodation is offered
- Evictions
Access to premises
This includes access to premises used by the public, such as:
- Libraries
- Government offices
- Hospitals
- Restaurants
- Shops
Clubs and associations
This includes:
- Applications to join a club or association
- Terms of membership
- Access to member’s benefits
- Expulsion from membership
Commonwealth laws and programs
It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or program to discriminate against a person because of their disability.
Education
This includes:
- Application for enrolment
- Treatment as a student
- Access to facilities
- Expulsion
- Educational facilities provided
- This does not apply to schools, colleges or universities, which are exclusively for students with disabilities. The ADA does not apply to private educational authorities.
Employment and work
An employer cannot discriminate against:
- Applicants for employment
- Terms and conditions of employment
- Promotion
- Training
- Access to workplace benefits
- Dismissal
Goods, services and facilities
This includes all types of goods, services and facilities, such as:
- Shopping
- Transport
- Insurance
- Entertainment
- Recreation
- Obtaining services from anyone, such as doctors or banks
Land
It is unlawful for a person to refuse or fail to dispose of an interest in land.
NSW Local Government
It is unlawful for a member of council to discriminate when acting in official capacity including:
- Being a councillor
- Council services
- Amenities
- By-laws
- Programs
Registered clubs
This includes:
- Applications to join a club
- Terms of membership
- Access to member’s benefits
- Expulsion from membership
The ADA only covers registered clubs and not associations generally. A registered club is a club which meets the requirements of the Registered Clubs Act in NSW.
Sport
It is unlawful to exclude a person from sporting activities. However, there are some specific exemptions for sport where the person with the disability is not reasonably capable of performing the actions required in relation to the sporting activity.
What is lawful and unlawful?
Direct discrimination
Direct discrimination is when someone treats you less favourably, or proposes to treat you less favourably, than they would treat someone else who does not have a disability, in similar circumstances.
For example, charging a person more to use their facilities because they use a wheelchair.
The people you are comparing yourself with are called the ‘comparators’. When complaining about direct disability discrimination, you need to be clear about who your comparators are. That is, whom you are saying receives better treatment than you.
Indirect discrimination
Indirect discrimination is when you are expected to meet some sort of criteria that you cannot meet because of your disability, and people without your disability would probably be able to meet it.
For indirect discrimination to be unlawful, the expectation or criteria that is placed on you has to be something that is unreasonable in the circumstances. For example, making the only entrance to premises by stairs, which means the premises are inaccessible to people with mobility disability.
Aiding and abetting
Under the Disability Discrimination Act (DDA) and Anti Discrimination Act (ADA), it is unlawful for another person to cause, instruct, induce, aid, or permit another person to commit an act that is unlawful.
Discriminatory questions
Under the DDA, it is generally unlawful for someone to ask you to give information that may be used to discriminate against you on the basis of your disability.
An example of a discriminatory question is ‘Does any member of your family have any one of the following medical conditions?’ It is not unlawful to expect you to provide this information if people who do not have disabilities are also expected to provide it in similar circumstances.
It is also not unlawful to ask you for information about your disability before or after you have been offered a job if your disability is linked to the tasks of the position. In addition, it’s not unlawful for someone to ask you about ‘adjustments’ that you need to ensure that you are not treated less favourably because of your disability.
Harassment
Harassment on the grounds of disability is unlawful under the DDA, but only if it happens in employment, in education or in the provision of goods and services. There is sometimes an overlap between discrimination and harassment.
Vicarious liability
Under the DDA and ADA, where an employee or agent has engaged in unlawful discrimination, that person’s employer or principal may also be liable for unlawful conduct if they failed to take all reasonable steps to prevent the unlawful discrimination from occurring.
Victimisation
Victimisation occurs when one person subjects or threatens to subject someone else to some form of detriment or harm. Under the DDA and ADA, it is unlawful to victimise a person because they have taken action under anti-discrimination law.
Vilification
Vilification is any public act that incites hatred towards, serious contempt for, or severe ridicule of someone on the grounds that they are HIV/AIDS infected, or thought to be HIV/AIDS infected. Under the ADA, it is unlawful to vilify a person because of their HIV/AIDS status.
Lawful discrimination definitions
Charities
The DDA and ADA do not apply to certain charities which confer benefits for a particular group.
Compliance with other laws
Under the ADA, where an employer, service provider or landlord must comply with another law, and the obligations imposed by the other law make is impossible to avoid discrimination, then the discrimination will not be unlawful.
Court orders
It is lawful to discriminate if it is necessary to comply with a decision of:
- The commission
- A court order
- An award made by an industrial court of tribunal
- A statutory authority
Inherent requirements of the job
When complaining about disability discrimination in relation to employment you need to show that your disability does not stop you from completing the essential features of the job.
This does not mean you have to be able to meet all the requirements of the job, only those that are essential to the position. This is known as meeting the ‘inherent requirements’ of the job. For example, it is probably an inherent requirement of a painter’s job to be able to climb ladders and carry paint tins.
In order to meet the requirements of the job, you might need some adjustments to be made. Provided the adjustments will not impose an ‘unjustifiable hardship’ on the employer, the employer is not allowed to discriminate against you simply because you need adjustments.
Insurance and superannuation
It is lawful to discriminate in the provision of insurance if it is based on actuarial or statistical data that is reasonable to rely on.
Migration
Discriminatory provisions of the Migration Act 1958 are exempt from the DDA.
Peacekeeping and combat duties
Employment in the Defence Force in combat or peacekeeping roles is exempt from the DDA.
Pensions
Discriminatory provisions of various Federal laws concerning social security, pensions and allowances are exempt from the DDA.
Public health (DDA)
It is lawful to discriminate against a person with an infectious disease if the discrimination is ‘reasonably necessary’ in order to protect public health.
Public health (ADA)
It is lawful to discriminate against someone if it is necessary to do so for public health and safety.
Special exemptions
The Commission or the Minister has power to grant an exemption under the Act.
Unjustifiable hardship
If the employer’s ability to make adjustments or a service provider’s ability to provide services will result in an unjustifiable hardship, then it may be lawful for the employer or service provider to discriminate against a person with a disability.
The factors that need to be taken into account to determine whether there will be unjustifiable hardship include:
- Benefits the adjustment will have for other people who may be affected
- Disadvantages the adjustment will have for other people who may be affected
- Effect of the disability on the particular person, and what this means in terms of the adjustments they need
- Costs of making the adjustment
