Disability Discrimination

What is Disability Discrimination

Disability discrimination is a violation of your Human Rights. You are protected by:

The Convention on the Rights of Persons with Disabilities

It is also unlawful to be discriminated against under Federal law in Australia, and state law in NSW:

Disability Discrimination Act 1992 (Cth)
Anti-Discrimination Act 1977 (NSW)

Disability discrimination is when you are treated unfairly because of your disability.

It can also happen where there is a rule or policy that is the same for everyone, but has an unfair effect on people with a particular disability

Who does it apply to and when?

Disability Discrimination applies to:

1. People with disability

Most health conditions, impairments, or illnesses that you can think of are a ‘disability’ under disability discrimination law. This includes:

Physical disability or health condition –
like using a wheelchair, diabetes, or cerebral palsy
Mental illness –
like Anxiety, Bipolar or Post Traumatic Stress Disorder (PTSD)
Intellectual disability –
like learning disability, brain injury, Foetal Alcohol Spectrum Disorder (FASD)
Sensory disability –
like Autism, being blind or vision impaired, being deaf or hearing impaired

This includes disability that is:

Temporary or permanent
Past, present or future (ie something that might develop in the future)
Imputed (where someone believes you have a disability, whether you do or not)

The law also covers people who have a relationship with a person with disability (like family members, friends, or carers). They cannot be treated unfairly because of their relationship with a person with disability.

2. In certain situations

It only covers things that happen in some areas of public life.

Disability discrimination law includes:

Employment and work – getting a job, the terms and conditions of a job, training, promotion, and being dismissed.
Housing – renting or buying a house or unit (including government housing).
Education – enrolling, studying or being dismissed from a pre-school, private or public school, college or university.
Getting or using services – such as banking and insurance services, services provided by government departments, transport or phone services, professional services like those provided by lawyers, doctors or tradespeople, services provided by restaurants, shops or entertainment venues.
Accessing public places – such as parks, government offices, restaurants, hotels or shopping centres.

There are also some other areas of life that are covered by disability discrimination. A lawyer can tell you whether something you’re experiencing is covered. See Where Can I Get Help

Identifying Disability Discrimination: Examples and Questions to Ask Yourself

The first question to ask yourself is:

Would I have been treated this way if I didn’t have a disability?

If your answer is NO, you might have experienced direct disability discrimination.

Examples of direct disability discrimination include:

Mel was charged more money to get on the bus because she uses a wheelchair
Keira was fired when her boss found out she lives with Bipolar
A school refused to enrol Bevan because he is Autistic – Bevan’s parents then complained about this and the school treated them and his siblings as ‘trouble makers’ and ‘problem people’
Dan was refused service at the Pub because they thought he was drunk, even after he told them he had a speech impediment
Emma’s gym asked her to leave, after they heard a false rumour that she lives with schizophrenia
Tjundamurra was dismissed from his job because he broke his leg

Speak to a lawyer to ask about your situation. See Where can I get Help.

The other questions you should ask are:

Is there a rule that applies to everyone, that I can’t follow or that disadvantages me, because of my disability?

Is there something stopping me from being able to access something like everyone else, because of my disability?

If your answer is YES, you might have experienced indirect disability discrimination.

Examples of rules or things that might be indirect Disability Discrimination include:

All staff have to stand behind the checkout – this is unfair for someone with arthritis who can’t stand for long periods of time and needs to sit down
All students will be suspended if they swear – this is unfair for a student with Tourette’s syndrome who cannot control if or when they swear
All Public Housing has stairs – this is unfair for someone with mobility problems who cannot use the stair
All trains don’t have audio announcements – this is unfair for someone who is blind or vision impaired and cannot see the station names or timetables
Centrelink says people can only contact them via phone – this is unfair for someone who is deaf and cannot speak on the phone
Everyone has to wear a mask to enter the bank – this is unfair for people who cannot wear a mask because of their health and have a medical exemption to say this
All students have the same time to sit an exam – this is unfair for a student with a learning disability who needs longer to complete tasks

Speak to a lawyer to ask about your situation. See Where can I get Help.

TALK UP! Asking for Change and Reasonable Adjustments

If you are being treated unfairly because of your disability:

You have the right to ask for changes to be made so that you can access or participate in something equally. This is called asking for ‘reasonable adjustments’.

If an adjustment is reasonable, but it is refused, this may also be direct or indirect Disability Discrimination.

Examples of reasonable adjustments

Nullah asks to be able to sit behind the checkout at work, because of his arthritis
Keira’s parents ask for the school’s policy around swearing not to apply to her, because she can’t help if she swears because of her Tourette’s syndrome
Emma asks for a ramp to be installed at her public housing so she can access her laundry with her wheelchair
Killara asks for trains to have audio announcements so that all blind people like her can travel safely and easily like other people
Yindi asks Centrelink to contact her via email or text, because as a deaf person she can’t speak to them on the phone
Jarrah asks his bank to let him attend without a mask, because he has a medical exemption because of his health condition
Jayden asks for extra time to do his exams, because of his learning disability

Exceptions and Defences

‘Unjustifiable hardship’

Sometimes the change or adjustment you need to be made, is not reasonable. This might be because it:

costs too much,
is too hard to do, or
would be unfair on others.

This is called ‘Unjustifiable hardship’ and this can be a defence to disability discrimination. This means that it may not be unlawful to discriminate against you in this situation.

For example: A small business may not be able to install an elevator in their store because there isn’t enough room or because it would cost them too much to do this. If someone is claiming that they can’t make a change or adjustment for you on the grounds of unjustifiable hardship, they must provide the reasons why they can’t make the change you’re looking for. You should always speak to a lawyer to help identify whether the change is reasonable or not.

‘Inherent Requirements’ at work

If you cannot perform the essential elements of a job (including performing your job safely) because of your disability, then it would not be disability discrimination for a company to say that you can’t work in that job or can’t have certain adjustments made.

You must be able to fulfil the ‘inherent requirements’ of a job.

For example, it would not be disability discrimination for:

A taxi company to refuse to employ a blind person as a driver
A call centre to require someone to be able to speak to customers via the telephone
A trainee electrician position to refuse someone who is colour blind

Other exceptions also apply. Speak to a lawyer or see our ‘further resources’ tab for more information.

Where can I get help?

If you think you, or someone you know, has experienced disability discrimination you should call a lawyer as soon as possible.

A lawyer will:

Listen to your story
Give you advice about whether your problem could be disability discrimination or not

From there, a lawyer can help by:

Writing letters about your rights and asking for changes to be made
Helping you make a Formal Complaint to the Australian Human Rights Commission or Anti-Discrimination NSW
Referring you to big companies who can represent you in Court for free

A lawyer could help you get a variety of outcomes including: