Hot Topics

Hot Topics in Disability Discrimination Law: Employment and Disability

Sydney, 21 June 2006

David Mason

Director Disability Rights policy HREOC

Introduction

I would like to begin by acknowledging the traditional owners of the land on which we meet, the Gadigal people of the Eora nation.

Can I also acknowledge Blake Dawson Waldron lawyers for providing the venue and facilities, and the NSW Disability Discrimination Legal Service for their initiative in organising this forum.

I have been asked to speak about employment and disability in the context of hot topics in disability discrimination law. I will try to do that, but with a few necessary qualifications.

First, although I have been asked to include some remarks on the implications of the WorkChoices legislation and the changes to remedies for unfari dismissal for the use of the DDA, I will largely defer on that issue to my colleagues also present here from the Commission's complaint handling section, since I think the major issue is one of impacts on practical choices by complainants and advocates among available remedies rather than, in the case of disability and other areas of termination that continue to be unlawful, HREOC having become the only game in town.

Things that haven't happened yet

Second, to the extent that any of the hot topics in employment and disability may include developments in discrimination law, these are largely developments which haven't happened yet.

You would be aware that the Productivity Commission conducted a major review of the Disability Discrimination Act, and that the Government response to that review accepted most of the recommendations of that review either in their terms or in principle. We have been advised that legislation to implement the response is aimed to be introduced in the winter sittings of Parliament. Looking at the weather outside, that does not leave much time, but we do not yet have a Bill available to discuss today.

I know some of our colleagues from the Federal Attorney-General's Department are here today, but there are some obvious constraints on them in discussing what might be in a draft Bill yet to be finalised for approval by their Minister.

Given the timetable and the extensive public processes conducted by the Productivity Commission, we are probably not looking at an occasion where there will be an exposure draft of a Bill available before it is presented to the Parliament to be dealt with.

For that reason, I am going to talk today about some of the issues that have occurred to the Commission in considering what amendments to the DDA might be made, as well as some issues that have been raised with us by disability community organisations in particular.

This isn't a matter of disclosing or announcing formal or final positions on the legislation - since the Commission has not advised Government of such positions, and on some issues is genuinely still developing its own views.

But I think that particularly in our work under the DDA, we are known for a commitment to open communication and consultation, in recognition of the fact that decisions which take into account the widest possible range of views and expertise are better decisions. I hope that what I say will be understood in that spirit of encouraging discussion, and not as a matter of announcing what will be in the amendments or decreeing what should be.

Limitations of discrimination law

Third, I think that given our topic and the number of lawyers in the room, it is always useful for lawyers to remind ourselves of some of Clint Eastwood's immortal words in the role of Dirty Harry: "A man's got to know his limitations."

Even with the additional features which the DDA provides compared to other anti-discrimination laws, in recognition of the distinctive nature of many disability access and equality issues, disability discrimination law is only ever, at best, a part of the agenda on achieving or moving towards equality for people with disabilities in employment.

Chris Ronalds' report back in 1990, which was one of the most important parts of the history leading to the DDA, certainly recommended national anti discrimination legislation as part of national strategy to remove barriers to participation and opportunity for people with disabilities in employment. (Given its date, the full text of this report is not available on the internet but with the permission of the Department of Family and Community Services I recently scanned and placed on the Commission's website at least the executive summary for those interested.)

Equally clearly, this report did not present such legislation alone as the solution to disadvantage in, and exclusion from, the labour market for people with disabilities in Australia.

Progress on employment outcomes?

Which is just as well - or we would have to judge the DDA a clear failure on employment issues.

In launching HREOC's national inquiry on employment and disability Commissioner Ozdowski summed up the experience this way:

After more than 12 years of experience in implementation of the DDA - and after more than two decades of similar legislation in a number of States including NSW - the employment position for people with disabilities overall does not seem to have improved; if anything, it has got worse.

More complaints are received on employment issues than any other area under the DDA.

A high proportion of these complaints have been resolved by conciliation. But it must be obvious after 12 years of the DDA and over 20 years of similar State legislation that we are not achieving equal opportunity for millions of Australians with disabilities one complaint at a time.

Since 1993, the labour force participation rate of people with disabilities has fallen, while the rate for people without disabilities has risen.

In 2003, 53.2 per cent of people with disabilities participated in the labour force as compared to 80.6 per cent of those without a disability. The workplace participation rate for people with a psychiatric disability receiving disability support payments is only 29%.

Among people in the labour force - that is, working or looking for work - the unemployment rate for people with disabilities in 2003 was 8.65 compared to 5% for people without disabilities.

When employed, people with disabilities also earn lower wages, on average, than workers without disabilities

These statistics are all pretty familiar by now.

The PC review of effectiveness of DDA confirmed what we already knew: the DDA had been reasonably effective in achieving or at least moving towards its objectives in many areas, but not so much so in the employment area.

The Productivity Commission made a number of recommendations for reform of the DDA itself. I will come back to those.

Issues raised in HREOC's employment and disability inquiry

I want to talk briefly though about a range of other issues which were raised in HREOC's national inquiry on employment and disability which released its final report earlier this year.

This inquiry did not make DDA itself a major focus. That was partly because we had already had a major inquiry conducted by the Productivity Commission and as an organisation with very limited resources we gratefully accepted the results of their work. Partly also it was a matter of focusing the inquiry on the major concerns brought forward in submissions. The DDA itself was simply not the most prominent issue among those concerns.

Economic issues had much more prominence. As another leading social commentator - Cindi Lauper - once observed, "money changes everything".

Costs of participation

People with disabilities raised major concerns during the inquiry over the costs of participation in employment (and also in education and training).

The Commission has indicated its own concern regarding the "welfare to work" changes implemented over the last year.

A major part of that concern is the apparent fact that many people with disabilities who want to participate in employment but face extra costs in doing so - from transport to added health costs to costs of personal support services - have been using income support payments not as an incentive to avoid working as might be suggested by much of the discussion of the issues, but as a means of meeting some of these extra costs of working. For these people reducing eligibility for income support may well reduce ability and incentive to work rather than increasing it as the government intends.

The DDA is obviously not the place to look for remedying this sort of barrier to equal economic and social participation and contribution. The DDA's coverage of discrimination in Commonwealth laws and programs refers only to their administration, not their content or sufficiency - quite apart from the specific exemption of social security benefits under the DDA. All that we are in a position to do is to call on the government to review its approach in this area in the light of experience.

Costs of adjustments

Economic issues for employers were also raised, in relation to the perceived or actual costs of making adjustments to accommodate disability. Although many adjustments cost little or nothing, and may have a net economic benefit for an employer over time, it also has to be recognised that the costs of some adjustments can present a significant up front disincentive to employment of people with disabilities. So it has been pleasing to see that in the last Budget the Government moved to improve the Workplace Modifications Scheme to broaden the range of situations in which employers could seek assistance with the costs of adjustments. The Commission's inquiry was not the first process to raise this issue but I think we did contribute to progress in this area.

Access to information

Related to this is the issue of improving access to information and advice on making adjustments. The costs of searching for information on an adjustment need to be taken at least as seriously as the financial cost of the adjustment itself. If you simply cannot find out what to do, then the cost of the adjustment might as well be infinite even if its financial cost is actually quite minor as will often be the case.

Even having to spend hours or days finding information may effectively be costly enough to make a less well resourced employer give up. And of course time while a necessary adjustment has not been made because it has not been identified, is time during which the employee is not being productive, and perhaps is losing self confidence and respect of others in the workplace.

For these reasons we have long argued that Australia should have an equivalent of the Job Accommodation Network advice and information service in the United States, including both a database of issues and solutions and access to interactive expert advice where needed.

So it is very pleasing to see that the Department of Employment and Workplace Relations will be launching the initial rollout of such a service this year, probably in August. We are expecting that the service will be set up in such a way that further information and advice including from experts among disability community representatives and advocates can be built in.

Risks

Apart from issues of costs and access to information, the other major theme raised during the inquiry was that of perceived or actual risks in taking on workers with disabilities.

One area of risks which was raised with us before the commencement of the inquiry was the prospect that anti-discrimination law might actually work against its own objectives, through the risk of potential time and costs in dealing with discrimination complaints giving employers an incentive to avoid hiring workers with disabilities in the first place.

Commissioner Ozdowski noted a particular concern in this respect in the context of the development of the WorkChoices changes to unfair dismissal laws. If, as turned out to be the case, people with disabilities remained protected from discriminatory dismissal both under the DDA and under the industrial relations regime, albeit with some changes to the remedies available there, while for employees in general employers were being given at least some reason to believe that dismissal was being made simpler, might not that make people with disabilities less competitive in the labour market?

The Productivity Commission review of the DDA looked at some studies in the United States claiming that the Americans with Disabilities Act had had exactly this sort of perverse regulatory effect in reducing employment of people with disabilities through creating disincentives for employers.

However, the Productivity Commission found those studies inconclusive in the United States and did not find that the DDA was having such an effect in Australia .

One issue here may be the need to approach with care some (not all) writings in the area of regulatory economics, which seem dedicated to the view that all regulation is bad, excessively costly and restrictive and counterproductive to its own purposes, rather than to promoting those forms and instances of regulation which are efficient and effective. So it was obviously valuable to have an economically literate body such as the Productivity Commission dealing with this issue, rather than a body such as HREOC which might be suspected, because of who we are and where we sit, of being institutionally inclined to think that what it is doing and the tools that it has works well.

It's also important to remember differences between the Australian and U.S. positions of course.

One set of differences are those between the ADA and DDA.

In my view the DDA is, appropriately, less procedurally prescriptive and bureaucratic in the employment area than the ADA . Just the discussion of who is and is not a person with a disability in the US Equal Employment Opportunity Commission manuals runs to hundreds of pages. I remember Elizabeth Hastings making the point that this approach seemed more likely to make people with a disability seem like a protected and dangerous species, to be identified for the purpose of being avoided, rather than employees to be welcomed and accommodated.

The US definition of disability, which unfortunately was also at first followed in the UK, has also led to court cases being fought, and lost, about whether a person such as a cancer survivor with no remaining symptoms or apparent additional risks, was nonetheless able to be regarded as "substantially limited" in day to day activities so as to be protected from wholly irrational discrimination.

By contrast in Australia we have had very little time and money wasted on issues of this kind, since by adopted a broad definition of disability the drafters sought to put the focus on what is discrimination, rather than on what is disability. That bit at least I remain confident we got right, even if, as the Productivity Commission found, other aspects have been shown by experience to need some revision.

Another area of difference is the prescriptiveness of what can and can't be asked about disability issues in the employment area under the ADA , and how it can and can't be asked.

These requirements have led to employers being advised that the safest thing to do about disability is not to ask anything. Fairly obviously, to me at least, that makes it hard to see how appropriate reasonable adjustments could be identified and made in a timely way, and easy to see how an employer who has a disability related concern but has not felt permitted to discuss it might respond by finding some plausible non-disability related reason for not employing the person.

As I will discuss again later, section 30 of the DDA, which we copied straight from the Sex Discrimination Act, is not as clear as it could be in what it says or means, but at least it doesn't say what the ADA does.

Apart from differences between the DDA and the ADA , another obvious and perhaps more significant difference in the US experience is the linkage of employment to health insurance since there is no system of universal health cover. In Australia employers are not presented with this additional layer of actual and perceived additional costs and risks and additional reasons to look for ways to avoid employing a person with a disability.

Risks of liability for discrimination were mentioned in the course of HREOC's employment and disability inquiry, but not anywhere near as strongly as perceived risks and costs and uncertainty in relation to occupational health and safety.

Occupational health and safety

Of course in talking about risks, it's important not to talk as if having people with disabilities in the workforce would be a brave new experiment. Employers obviously are, or should be, familiar with needing to deal with disability where it arises from work related injuries to workers who may not have had a disability when they commenced work.

And the rate of hidden disabilities like mental health conditions or more moderate levels of hearing impairment, each of which appear to affect millions of Australians, means that almost every employer probably already has employees with disabilities.

There have also been studies indicating that workers with known disabilities on average actually present better safety risks than other employees.

Reasons for that could include the "once bitten twice shy" effect, where a person who has experienced a significant injury may be more likely to be careful in future than a person who has not.

Also, many accidents happen when a person does not see or hear a hazard coming - whether because of distractions, or noise in the environment, or temporary obstructions to their view. The person who is used to having less than perfect vision or hearing by contrast may be more prepared for these sorts of traps - and looking at this point another way, systems designed with disability in mind are likely to be safer for all workers.

In discussions between the Mental Health Council of Australia and the insurance industry a similar point has been made by Professor Ian Hickie. The rate of mental health problems in the community and the workforce is so high that a person who already has a mental health diagnosis and is receiving treatment may well be a better statistical risk in terms of losing time off work for mental health reasons than the population of people who do not have a diagnosis or treatment plan but may well need one.

But those sort of statistics don't always help in dealing with concerns about a particular person for a particular job with a known particular disability.

Employers have indicated they are concerned not only with possible increased risks of workers being injured and unable to perform their duties but also risks of increased compensation costs and potential liability under occupational health and safety laws.

Work trials and addressing risks

One strategy for addressing barriers arising from perceived risks has been through further development of the concept, or concepts, of work trials.

The 2003 FACS review of Employer Incentives Schemes strongly supported the development of a "more robust platform" for work trials, with many employers saying they would be more willing to employ people with disabilities if they could "try before they buy", and with lack of practical experience being seen as a key barrier even for people with disabilities who have acquired substantial educational qualifications.

The same theme was taken up in submissions to HREOC's inquiry, with suggestions that support for work trials needs to be enhanced through:

•  Clarification of employer responsibilities in industrial relations; occupational health and safety; workers' compensation; insurance; unfair dismissal; and discrimination legislation.

•  Provision of clear and easily accessible information to employers about these issues.

•  Investigation of the development of a national scheme of insurance coverage for work trials.

Taking those points in reverse order, at least a start was made in this year's Budget which included provision for insurance cover for people eligible for the Disability Support Pension. These are not paid work trials in the sense of being paid by employers but people undertaking them do remain able to receive income support payments. Potentially this might emerge as a pilot for insurance cover for work trials more broadly including in the area of transition from education and training to work which was consistently identified in HREOC's inquiry as a major area of barriers.

On the second point as I have said DEWR will be launching an employment information and advice service shortly.

Point 1 is where further work is clearly needed. We made a submission to the recent review of federal OH&S law to emphasise the issues which came out of HREOC's inquiry and are awaiting the results of that review. We will also be seeking to re-commence shortly the working groups which were established as part of the inquiry including in this area of OH&S and other risks.

One set of issues there may be issues of the relationship of the DDA to other laws. I will come back to this in a moment

DDA reform issues

Although as I have said discrimination law should not be regarded as the whole story on equal employment opportunities for people with disabilities, part of the response to the statistics may lie in reform of the DDA itself.

As already noted, although the Productivity Commission review of the DDA found that overall the legislation was working well, it pointed to a need for improvements in the employment area.

In particular it recommended that the legislation spell out expressly duties to make reasonable adjustments instead of leaving those to be implied from the concepts of discrimination used as at present.

Indirect discrimination and reasonable adjustment

In previous papers on success and lack of success under the DDA we have stated that the concept of indirect discrimination has worked fairly well in relation to physical and communications access issues.

Probably though the real truth is that the DDA has worked well on these issues because they mostly have not really been thought about much within the limitations of indirect discrimination law provisions and analysis as we currently have them.

Complainants haven't generally had to argue in detail that provision of access to premises by means only of stairs, or provision of information only in the form of print on paper, have involved imposition of a condition or requirement.

Of course we could say that this is because the High Court in Waters v Public Transport Corporation settled the issue that a condition or requirement can be found from a practical situation rather than an explicit rule - but that point does not seem to have always flowed through to employment cases.

Another important difference has been that on access issues there are various standards based regimes which either have regulatory force of their own - such as some of the Australian Standards suite in the area of building access - or at least can be referred to to give some more practically useful content to the general non-discrimination requirements of the DDA, even if their formal status for the purposes of DDA compliance remains uncertain in the absence of implementation of the Productivity Commission's recommendation and the Government's decision for co-regulatory mechanisms whereby HREOC could certify other codes and standards for the purpose of DDA compliance.

Clearly, the concept of indirect discrimination has not always worked so well in the employment area, in particular in relation to people with psychiatric disabilities or whose disability requires some adjustment in the organisation of work.

Courts have struggled to find indirect discrimination for example

• where a man with an autistic spectrum disorder could not cope with unexpected changes in routines
• where a person with a mental illness was not allowed to return to work after an extended break.

Standards and reasonable adjustment

I cannot help pointing out that if disability standards on employment had been adopted in something like the form HREOC had drafted them in 1995-96, the issues I have just referred to would not have arisen in the same way, and we would not have to await implementation of the Productivity Commission recommendations hopefully in 2006 to confirm that the DDA does indeed require reasonable adjustments.

We would not have some courts playing "spot the condition or requirement" in seeking a reasonable adjustment obligation between the lines of s 6; and we would not have other courts failing to even embark on the search, jumping straight from the conclusion that there is no discrimination under s.5 (because of problems in finding less favourable treatment, or an appropriate comparator, or the whole process sinking in the conceptual swamp of "material difference") to the result that therefore there is no discrimination at all.

That is perhaps a more natural result in the sex discrimination area where indirect discrimination cases have involved complex conceptual discussions and evidentiary requirements regarding base pools for comparison and so on. But as I have said, under the DDA the problems in dealing with indirect discrimination have not been these problems of comparison, but rather the problem of looking for and finding a condition or requirement (and also as I will discuss in a moment the problem of needing to be unable to comply with the condition or requirement, rather than only experiencing a disadvantage). To restate the point, models and experience from other areas of discrimination are not always sufficient in dealing with disability issues.

Apart from inclusion of defences based on "unjustifiable hardship" in the DDA - which would hardly be contemplated in the race discrimination area for example - the major recognition of that difference in the DDA is the provision for development of Disability Standards, compliance with which when in force is both necessary and sufficient for compliance with the DDA where they apply. I want to talk for a minute about experience with standards and other systemic approaches.

Early in the life of the DDA some disability advocates and organisations saw standards as suspect in principle (quite apart from the more substantial issues of whether the terms of any particular proposed standard were appropriate and, as a means to that end, whether there had been sufficient participation by and consultation with the disability community with the expertise and experience which it has to contribute).

This suspicion it seems to me was largely a matter of unfamiliarity with an approach of having an anti-discrimination law provide a means for pursuing systemic and structural solutions to broad social issues, rather than taking an individual right to complain as the last word in human rights rather than as one possible means of achieving rights, and only talking in an academic way about the need to have more systemic approaches without actually putting this into law and practice.

This view - that the standard discrimination law provisions should be left alone to work for some indefinite further period - was clearly expressed in the employment area, and is one reason we did not get employment standards adopted ten years ago. (To be fair, there were other reasons, including mixed feelings from both disability and employer organisations about whether the particular standards were appropriate in particular in setting out principles rather than specifying results.)

In the public transport area, however, the disability community very clearly preferred delivery of the right to accessible transport in practice (albeit delivery in stages over time) to a right to complain about not having it. It was widely grasped that winning on a point of discrimination law in the High Court in Waters v Public Transport Corporation was not the same as winning access to trams.

It is also worth noting that one of the things which got accessible trams rolling out in Melbourne, before the Standards were in force, was a temporary exemption under the DDA. As was clearly shown by this experience, enterprises having to make long term investments in infrastructure regard certainty of obligations as highly valuable and will make substantial commitments to improving access in return for that certainty.

In the area of access to premises, the final Regulation Impact Statement on the current proposed standard included the following comment by the Australian Building Codes Board, as the lead regulator in this area, on the consequences of staying where we are now without a standard:

Poor compliance is an almost inevitable result of poorly specified legislative requirements and requirements that rely on a mechanism based on individual complaints in order to identify and address issues of non-compliance.

The current process of developing disability standards on access to premises involves a process of trading an individual right to complain under open ended discrimination provisions, against the upgrading of mainstream regulation and access to compliance enforcement by bodies dealing with tens of thousands of applications for approval each year and in advance - as well as a continuing right to complain to anti discrimination agencies but with their jurisdiction defined in more specific terms .

Development of standards through negotiation - between HREOC and other regulators and between industry and disability community representatives - involves the same insight which underlies the frequent success of the conciliation process: that results can be achieved for all parties through negotiation which might not be available through any party insisting on total victory for its own position.

The content of the proposed access to premises standards and thus the appropriateness of endorsing them remains under debate. But I think the merits in principle of a trade-off such as I have described are now well understood among disability organisations who have been involved in the process over the years.

I think it is important that they should also be well understood among the discrimination law community, so that advice and opinions can be directed to the real issues (are the standards right) instead of to arguments about whether standards in this area are desirable in principle. All Australian governments have already agreed on that point, in the course of extensive consultation with the community as well as with industry and after a detailed regulation impact statement process.

Co-regulation

Some similar issues of principle are presented by implementation of the Productivity Commission's recommendation, and the Government's decision accepting that recommendation, on co-regulatory mechanisms, which I have already referred to, whereby HREOC could certify other codes and standards for the purpose of DDA compliance.

I should note, as Commissioner Innes has done on recent occasions when this subject has come up, that HREOC is still forming its views on how to respond to the Attorney-General's request for advice on such mechanisms - including what the effect of certification should be, and critically how to ensure appropriate input and consultation occurs.

But in principle, such a mechanism might offer the means of performing a similar task to disability standards on some issues, including in harmonising requirements of the DDA and other regulatory regimes such as OH&S and providing a forum for negotiation between HREOC and other regulators, the disability community and industry bodies.

As Commissioner Ozdowski suggested at a forum last year on discrimination and OH&S, a capacity for such a code to be recognised for the purposes of discrimination law might be a factor in OH&S authorities acting to develop codes on issues where safety concerns have presented barriers to people with disabilities, as well as promoting safe working practices for all employees and certainty for employers - including perhaps on issues of hearing impairment.

The national code on HIV/AIDS some years back provides a possible precedent, where such a code had a clear objective of removing unjustified and discriminatory restrictions based on inadequate information and fears as well as the purpose of promoting workplace safety.

Coming back to adjustments

I cannot now fully explain why in the initial drafting of the DDA we were unable to develop and have legislated an effective provision requiring adjustments to be made to accommodate disability related differences where necessary in employment and other areas. Perhaps this shows again the value of the subsequent 14 years experience we have had with the specifics of disability and of the sort of processes of discussion with disability community and employer organisations which went into the development of the draft disability standards on employment in 1995-96.

A reasonable adjustment provision in 1992 would have been a major departure from what we had in the SDA and RDA and existing state laws. All we could manage in 1992 was subsection 5(2), which as shown in the Purvis case does not really work.

In the course of informal discussions with the Attorney-General's Department we have made suggestions on issues to be dealt with by a reasonable adjustment provision. Our views in this area draw on the extensive discussions which went into the draft employment standards, which you may have noticed bear a close family resemblance to the current Frequently Asked Questions material on employment and disability on HREOC's web site.

I would like to run through a few of the issues which might arise in drawing up a reasonable adjustment provision for the DDA.

Provision or provisions?

Consideration by parliamentary counsel may suggest other courses, but at first sight it seems to me that it would be preferable to adopt two separate provisions on reasonable adjustment, one for employment and occupation (under part 2 division 1) and one for other areas of unlawful discrimination (under part 2 division 2), rather than a single common provision.

This is partly on the basis that it should be possible to specify what is required in a little more detail for employment than for most other areas and partly in the interests of consistency with existing rights and obligations (since the employment area is subject to defences based on inherent requirements which do not apply elsewhere).

Failure to make adjustment as part of discrimination

It seems to me that failure to make a required adjustment would be best approached as an additional definition of discrimination for the purposes of the division concerned.

Alternative models are available - in particular the statement of a separate positive duty as provided for in section 6 of the Disability Discrimination Act 1995 ( UK ). However, this duty appears to go beyond Australia 's DDA, including in not being limited by the inherent requirements of the particular job concerned. As I understand it the Government's decision in response to the Productivity Commission recommendation on this point is to state expressly the duty of reasonable adjustment at the level at which it is currently implicit in the DDA rather than to significantly increase the level of employer obligations.

Awareness of need for adjustments

In my view HREOC's current FAQ material appropriately states that a reasonable adjustment is required if the discriminator was, or reasonably should have been, aware that such an adjustment was needed.

Adjustments and associates

The Government agreed with the Productivity Commission that defects and confusion in the ways that the definitions of disability under the DDA apply to associates should be remedied. Reasonable adjustments should thus include adjustments required because of the disability of an associate (subject to the same limits as for other adjustments including inherent requirements and unjustifiable hardship).

Possible definition

Purely for the purpose of illustrating the issues, a possible definition of reasonable adjustment might include:

Reasonable adjustment means any adjustment required because of a person's disability or the disability of an associate of that person to enable the person to have opportunities which are as far as possible equal to those afforded to other workplace participants in relation to any matter dealt with by this Division, and includes adjustments necessary to enable a person to

• be considered for selection, appointment, promotion, transfer, training or other employment or occupational opportunity
• perform the requirements of the particular employment or occupation
• enjoy equal terms and conditions of employment or occupation
• participate in and benefit from any work related facilities, programs or benefits.

The term "workplace participant" here is intended to cover any person against whom discrimination is or would be unlawful under this Division - it might or might not be found best suited for this purpose by more expert drafters.

Examples of reasonable adjustment

My own preference would be for a provision on reasonable adjustment to include illustrative examples - as was done within the Disability Standards for education.

Some jurisdictions including Victoria and Queensland have started including examples in some legislation in the interests of plainer English drafting.

Some disability advocates have suggested that to provide examples would limit the application of a reasonable adjustment provision to those matters raised in the examples.

I have never been persuaded myself by the argument that to spell out rights is to limit them, since I first came across it in first year law school in discussions of whether or not to have a constitutional charter of rights.

The Commonwealth government has made it clear however that it is not happy about this as a matter of drafting technique and that any examples would need to come from HREOC by way of guidelines (or, presumably, from the new one stop information shop by way of information on practical experience).

Whatever the method adopted I hope that we can have the maximum level possible of information and guidance for courts and - far more importantly - for employers on the sorts of adjustments which are required and possible.

HREOC's current website material does not go into specific practical detail but does include the following:

Examples: Reasonable adjustment may include:

• adjustments to workplace or work related premises, equipment or facilities, including provision of additional equipment or facilities
• adjustments to work related communications or information provision, including the form or format in which information is available
• adjustments to work methods
• adjustments to work arrangements, including in relation to hours of work and use of leave entitlements
• adjustments to methods used for testing, assessment or selection
• adjustments to work related rules, or other adjustments to enable a person to comply with rules as they exist
• access to training, transfer, acting, trial or higher duties positions, traineeships, or other forms of opportunity to demonstrate or develop capacity in a position
• provision of interpreters, readers, attendants, counselling or other work related assistance or support
• permitting or facilitating a person to use equipment or assistance provided by the person with a disability or by another person or organisation
• providing training to co-workers or supervisors

Adjustments or reasonable adjustments?

I have been referring so far to "reasonable adjustment". This term of course does not appear in the DDA - or we would not be having this discussion - but it was used in the second reading speech on the Bill for the DDA and is also used in relevant international human rights documents including the UN Standard Rules.

I'm more persuaded, on the basis of discussions at the recent forum conducted by People With Disability Australia on implementation of the Productivity Commission recommendations and response, than I have been previously, that reference to "reasonable" adjustment might be misinterpreted as inserting an additional defence or limitation that all adjustments have to be reasonable, instead of leaving the scope of required adjustments to be determined by what is needed in the circumstances and whether unjustifiable hardship or other relevant limitations already in the Act apply.

However, in putting an argument that the term "reasonable" should not be used, people would need to be prepared to meet arguments that, outside of the employment area, most duties to make adjustments under the DDA are already subject to a reasonableness limitation, because these duties currently have to be implied from section 6 on indirect discrimination, which obviously includes reasonableness as an element.

For employment, s.15(4) means in effect that there is a duty to make adjustments where needed to enable people to perform the inherent requirements of the job, up to the point of unjustifiable hardship - but even in the employment area, adjustments for other purposes such as in the recruitment process have to be found from section 6 too.

Another question to think about is how much difference in law and practice all this really makes.

Some decisions such as that by Sir Ron Wilson in Scott v Telstra have drawn a distinction between unjustifiable hardship and reasonableness, indicating that reasonableness should be concerned with the impact on the complainant and should not include reference to factors which can be considered under unjustifiable hardship instead.

For myself I have always found that approach difficult to reconcile with the decision of the Full Federal Court in the Styles case, confirmed subsequently by the High Court, that reasonable means reasonable in all the circumstances. Sir Ron was concerned with the idea of the same issues being considered twice with different onus of proof for unjustifiable hardship and reasonableness. But since then it has become clearer that in effect the respondent bears at least an evidentiary onus in relation to a condition or requirement where its reasonableness has been called into question; and I think also that the territory covered by reasonableness and unjustifiable hardship is converging if it has not completely merged.

If it is clear enough in the legislation that reasonable adjustment means any adjustment necessary for the sorts of purposes I have tried to set out above, subject only to the limitations provided by defences based on unjustifiable hardship and inherent requirements, it still needs to be asked whether reference to "reasonable" adjustment would do any harm in leading to any further unintended limitation of the requirement to make adjustment; and whether it might not do some good in reinforcing the point that an adjustment has to be reasonable in the sense of being well adapted for its purpose and the requirements of the person concerned.

Defences based on unjustifiable hardship and inherent requirements were also discussed in the Productivity Commission report and I turn to those now.

Extension of inherent requirements defence to all employment related matters

The Government accepted the Productivity Commission's recommendation that the defence of inherent requirements should be available in all employment situations (rather than only in relation to decisions not to employ or to terminate employment).

This recommendation arose from concerns raised during the inquiry that the inherent requirements defence might be found not to apply to promotions or transfers for an existing employee. This is not a problem that has arisen in complaint handling or decisions under the DDA but it has been raised in relation to the similar provisions of the NSW legislation.

There could also be other concerns, such as whether it is sufficiently clearly lawful to temporarily suspend from work, rather than dismiss, an employee who is temporarily unable to perform the inherent requirements of the job; or to reassign them to less preferred duties which they can perform. Again these issues do not appear to have presented a practical problem in handling complaints under the DDA to date, but clearly as far as possible the DDA should say what it means and not leave it to processes of creative interpretation to reach results consistent with the objects of the Act and with common sense.

On this basis the Productivity Commission recommendation in this area appears appropriate in principle.

However, it may not be appropriate or adequate simply to extend the existing drafting of the defence to all situations.

While the DDA clearly should not require people to be promoted or transferred into positions which they cannot perform, it does not follow that all possible instances of discrimination in relation to promotion or transfer should be accepted, simply because a person cannot perform the inherent requirements either of their current position or of a particular promotion or transfer position.

A person might become unable to perform the inherent requirements of their current position, and yet be the best person for a promotion or transfer from that position to one which uses their existing skills but avoids those tasks which their disability prevents them performing. Recent HREOC complaint handling experience, for example, included a conciliated settlement for an injured, but experienced, transport worker to be promoted into a position training other workers to perform his own former duties. It would not be a good result for the DDA to appear to discourage such results.

Similarly, there are issues in relation to access to training. Fairly obviously it would be futile to require that a person be given access to training for a position which they are unable to perform. However, it could be confusing for section 15 to provide, or appear to provide, that a person who cannot perform the inherent requirements of their job can lawfully be discriminated against in all circumstances related to access to training, when training may be an effective means of enabling them to perform these requirements (as for example was found by Commissioner Innes in Woodhouse v Wood Coffill Funerals) and would thus be required under the reasonable adjustment provision.

It also needs to be considered how the inherent requirements defence should apply to "arrangements made for the purpose of determining who should be offered employment". Under section 15 as currently drafted, although it is clear that an employer need not offer employment to someone who in fact cannot perform the inherent requirements of the job because of his or her disability, it may not be equally clear (considering section 15 by itself) that an employer may refuse to interview such a person.

An appropriate balance seems needed between ensuring that people with disabilities have opportunities to address employer concerns at interview, and requiring or appearing to require interviews in circumstances where it is futile or counterproductive. Consideration is also needed of how the inherent requirements defence should affect requirements for accessibility of the application process and interview arrangements.

One approach to these issues might be to leave the inherent requirements defence as it is in relation to offering employment and termination, but add an additional provision along the following lines:

Subsections 1(a), 1(c), 2(a), 2(b) and 2(d) do not render unlawful any act or omission which in all the circumstances is reasonably based on the inherent requirements of the particular employment.

I have used the word "reasonably" here with some hesitation, given probable concerns about whether this would excessively expand employer discretion. In fact however I think the effect would be to confine requirements more closely to those which can be objectively justified.

The Discrimination (Employment and Occupation) Convention states simply (in Article 1.2) that

"any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination."

But simply to reproduce this provision would not I think be adequate in this area (bearing in mind that implementation of international obligations may involve a process of translation into, rather than simple restatement as, domestic law). To be "based on" inherent requirements, does a distinction or exclusion have to be "essential or necessary" because of those requirements? That seems narrower to me than the concept of being "based on" inherent requirements. But will a distinction or exclusion which is "motivated" or "caused" by inherent requirements be permissible even if it is wildly overbroad in its effect (excluding the target group to be excluded for inability to perform the inherent requirements of the job but going way beyond that) or even bears no rational relationship to the inherent requirements of the job beyond a genuine but mistaken belief?

The concept of distinctions "reasonably" being based on the inherent requirements of the job is intended to exclude these fairly clearly unsatisfactory possible results.

Definitions of discrimination

Indirect discrimination: Removal of proportionality test, onus of proof and proposed discrimination

The Government response to the Productivity Commission review accepted that the proportionality test which section 6 of the DDA includes (unlike its equivalents in the SDA and the RDA) has little apparent benefit and imposes an undue burden of proof on complainants, while noting that a revised version of section 6 would need to retain a requirement that any disadvantage be because of disability.

The Government also accepted the Productivity Commission's recommendations to amend section 6 of the DDA to require the respondent to have the onus of showing that the requirement or condition is reasonable, and to cover incidences of proposed discrimination in the definition of indirect discrimination.

It has to be said though that the issues of comparator and proportionality (which are addressed by the PC recommendations) are really the only aspects of the definition of indirect discrimination under the DDA which have not been a problem.

I think that adopting the SDA definition for indirect discrimination would be a big improvement - particularly in referring to disadvantage rather than total inability to comply (which has been a problem in education cases such as Hinchcliffe ), and in adding "or practice" to "condition or requirement" since that moves it away from the idea of needing a formal explicit rule etc. which has been a problem in some employment cases as I have discussed earlier.

The SDA model is as follows:

5(2) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

7B(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

• the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
• the feasibility of overcoming or mitigating the disadvantage; and
• whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

7C. In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

There seems no reason to me not to follow the SDA model closely.

Comparator issues and direct discrimination

Comparator issues as I have said are the aspect of indirect discrimination under the DDA which have not been a major problem. But they clearly have been a problem in the operation of the definition of direct discrimination - including the issue of what is a "material difference" for the purpose of finding less favourable treatment, and the issue of identifying an appropriate comparator. I am not saying anything new in saying this of course: legal and other advocates in the disability area have been saying the same thing for years now.

The Productivity Commission review discussed uncertainties in the operation of the existing definition, particularly in the light of the High Court decision in Purvis, but recommended only that HREOC should address this by providing more information on what "material differences" might be.

But post Purvis, wouldn't an honest version of that really have to be: "almost anything, or whatever a court might think is needed to get to a reasonable result"?

Material difference really does look at this point to be best measured using a chancellor's, or rather a Federal Magistrate's or Federal Court judge's foot (to recycle Selden 's famous comment on the indeterminate measure of equity early in the development of that branch of the law).

I emphasise that there is not yet any formal HREOC view on how this issue should be addressed.

There would, of course, be a need to avoid anything which could have undesirable implications for the same part of the SDA, which has not caused any significant problems that I am aware of.

Post Purvis, however, it is perfectly clear that the same words in SDA and the DDA already can mean, and in this instance do mean, different things.

So it is not at all clear to me that any argument of preserving uniformity actually applies any more on this point.

In the SDA, sex based distinctions still can't be material, because that would "fatally frustrate" the purposes of the legislation, as a number of decisions have stated.

In the DDA, however, disability based distinctions can be material. We have the word of the majority of the High Court in Purvis for it that this will not fatally frustrate the purposes of the DDA. What we do not have, is a clear test for which disability based distinctions are material and which are not, which might add some more substance to that assurance than is apparent to me at this point.

I am reminded of the following exchange from "Shakespeare in Love":

HENSLOWE: Mr. Fennyman, let me explain about the theatre business. The natural condition is one of unsurmountable obstacles on the road to imminent disaster. Believe me, to be closed by the plague is a bagatelle in the ups and downs of owning a theatre.

FENNYMAN: So what do we do ?

HENSLOWE: Nothing. Strangely enough, it all turns out well.

FENNYMAN: How ?

HENSLOWE: I don't know. It's a mystery.

There are several precedents for a direct discrimination section which doesn't use a comparator, and therefore has no need of the concept of material difference to assist in the comparison. These include the ACT legislation which just refers to people being treated "unfavourably" because of disability.

Issues to think about in this context though could include what qualifications might be acceptable and necessary on such a definition, to replace the "material difference" and comparator elements.

Extension of unjustifiable hardship defence to all areas of unlawful discrimination under the DDA (other than harassment and victimisation)

The simplest means for implementing this Productivity Commission recommendation would be to insert a general provision on the following lines in section 11, prior to the existing text of that section:

• Subject to subsection (2) nothing in this Act requires a person to do or omit to do any act where doing or omitting to do the act would impose an unjustifiable hardship on any person.
• Subsection (1) does not affect liability under section 32 or Division 3 or Division 4 of Part 2 of this Act.
• [insert existing section 11 subject to amendments as discussed under next heading]
• A person claiming that unjustifiable hardship would result from an act or omission bears the burden of proving this.

Considering that it appears to have been accepted that there should be a legal burden in relation to reasonableness under section 6, and that the principal differences between unjustifiable hardship and reasonableness at present seem to reduce to location and nature of burdens of proof, it would be appropriate to reduce the complexity of the Act by a provision in the terms of subsection (4) above.

This seems to be a matter of stating more clearly the existing position rather than changing the law adversely to respondents. It has been accepted in the case law that the onus is on the respondent to establish unjustifiable hardship by way of defence: "the essential elements of the principal discriminator's liability do not include the negative proposition that there be no unreasonable hardship to such discriminator.": Cooper v Human Rights and Equal Opportunity Commission; cited with approval in Sluggett v Human Rights and Equal Opportunity Commission.

Unjustifiable hardship, qualifying bodies and employment agencies

Section 19 on qualifying bodies and section 21 on employment agencies each provide for an inherent requirements defence.

This does not, however, cover situations where the person could perform the inherent requirements, but only with adjustments involving unjustifiable hardship. The proposed section 11(1) above is not designed to achieve this result (although it would protect qualifying bodies and employment agencies in situations where the conferring of a qualification or referral by an agency in itself could be shown to impose unjustifiable hardship).

The basis for this approach is that if a person can perform the inherent requirements of a job, qualifying bodies should remain required to certify them, and employment agencies should be required to refer them, accordingly, leaving decisions on unjustifiable hardship to particular employers. Circumstances affecting unjustifiable hardship are likely to be better known to employers than to agencies covered by sections 19 or 21 and will often vary between different employers.

Clarification of factors to be considered in relation to unjustifiable hardship

The Government accepted the Productivity Commission's recommendation that the criteria for determining unjustifiable hardship in the DDA (section 11) should be expanded to:

• require consideration of the costs and benefits to all persons and an assessment of the net benefit to the community;
• include as a relevant circumstance, the availability of financial and other assistance; and
• clarify that any respondent to a complaint (not just "service providers") can expect to have their action plan considered.

It is important that drafting in this area needs to avoid imposition of a requirement to conduct a formal cost/benefit analysis before being able to raise an unjustifiable hardship defence, a such a requirement, or the appearance of it, would impose an unjustifiable procedural burden on parties (including in particular smaller respondent businesses) with consequent disadvantages for the HREOC and the Courts in dealing with complaints.  

Requests for information

As recommended in HREOC's initial submission to the Productivity Commission, the Government accepted that the confusing nature of the current drafting of section 30 on requests for information should be addressed.

The purpose of section 30 is not to protect privacy as such (that being the role of the Privacy Act 1988 ) or to prevent humiliation through unnecessarily intrusive questions (that being the role of provisions dealing with harassment), but rather to prevent questions which may serve as the basis for discrimination, particularly in circumstances where it may be difficult to establish that, for example, the reason a job was not offered was in fact for discriminatory reasons.  

The objectives to be balanced here are preventing the gathering information as basis for discrimination, and not preventing discussion and resolution of concerns which present barriers to employment (in the way which I think the United States ADA provisions do as I have said).  

The opening three lines of the current section 30 create much of the confusion but they are required to give effect to the point that the section only applies in areas where the DDA makes discrimination unlawful. This element could be better achieved perhaps and with less confusion by not maintaining section 30 as a separate provision but relocating it as a part of the definition of discrimination in section 5.

This would also have the advantage of making discriminatory questions more obviously subject to the same defences etc as other forms of unfavourable treatment, including unjustifiable hardship and inherent requirements.  

A starting point for a possible re-draft and relocation for DDA section 30 taking these issues into account could be:  

5(3) Discrimination includes requesting or requiring information about a person's disability or the disability of an associate, unless this information is reasonably required for a purpose not involving unlawful discrimination.

Conclusion

As I said at the outset, reform of the DDA is only one aspect of seeking means to improve employment outcomes and opportunities for people with disabilities in Australia , but I have tried to outline some of the issues in the next stages of pursuing a reform agenda.

Not all of the issues I have raised will necessarily find a place in the forthcoming round of amendments, either because the Government takes a different view or because on some points further discussion and consultation is found to be required. Hopefully though this paper has made some contribution to that discussion.