Equal employment opportunity for people with disabilities: how to move from the theoretical to the actual

Equal employment opportunity
for people with disabilities: how to move from the theoretical to the
actual

Equal Opportunity Practitioners in Higher Education Australasia Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner Australian National University 30 November 2001

Introduction

Allow me to commence by acknowledging the traditional custodians of the
land on which we meet.

I congratulate EOPHEA for organising this discussion. Although, of course,
your focus is primarily on employment in the university environment, the
conference program is clearly designed to address equal opportunity issues
of much more general significance. I have approached my own paper in the
same spirit: I hope it will be particularly relevant in your own context
as equity practitioners in higher education, but I have taken the opportunity
to raise issues of wider relevance.

Yesterday's discussions dealt with problems in achieving real cultural
change and in achieving mainstreaming of equal opportunity issues in organisations.
My topic this morning raises the issue of how to move from the theoretical
to the actual in pursuing equal employment opportunity. In my remarks
here I want to point very briefly to some of the evidence that such a
move is needed, and then spend most of my time in discussing some strategic
issues in making that move happen.

Focus on disability issues

I am speaking here principally in my capacity as acting Disability Discrimination
Commissioner, and I propose to focus mainly on equity issues as they affect
people with disabilities.

I know that the focus of EOPHEA and of this conference is not restricted
to disability issues.

For that matter, issues for people with a disability are not restricted
to disability issues, either.

Half the disability community are women, and have the same concerns as
other women regarding gender based disadvantage. In fact there is evidence
that women with disabilities are subjected to sexual harassment and abuse
at an even greater rate than other women.

People with disabilities share the ethnic, religious and cultural diversity
of the Australian community.

Disability is an inherent part of the human experience - whether acquired
through illness or injury or inheritance or simply through the ageing
process.

So Australia's indigenous peoples also include people with all kinds
of disability. Some disabilities, for example deafness and hearing impairment,
occur at a much higher rate among Aboriginal people than in the community
generally.

These may be obvious facts, particularly to this audience. One reason
I mention these facts is because I think in discussing diversity or equal
opportunity issues there is a constant need to struggle against the temptation
to treat people as if they really are conveniently divided into separate
EEO categories.

On this thinking for example a woman with a disability may be seen as
an inconveniently complicated phenomenon, crossing over different areas
of policy or responsibility. Worse still if she has an accent like mine
- instead of simply being seen as herself and as an instance of what human
diversity really means.

The other reason that I have made these remarks about people with disabilities
including women, non-English speaking and indigenous people and other
categories of diversity, and vice versa, is to excuse myself in advance.
Because I am going to concentrate on disability discrimination issues
in the rest of my remarks.One reason is that - as you probably know - my own organisation, the Human
Rights and Equal Opportunity Commission, is itself divided up into separate
categories of responsibility. So in addition to our President we have

• a Sex Discrimination Commissioner;
• an indigenous Social Justice Commissioner and acting Race Discrimination
  Commissioner;
• and myself as Human Rights Commissioner and acting Disability Discrimination
  Commissioner.

As Human Rights Commissioner I have principal responsibility on those
areas which do not have their own specific discrimination Act and Commissioner,
such as age and sexuality. You may be interested in a paper I gave in
Canberra earlier this month on the need for national age discrimination
legislation. This paper is on our website and so I will not take up more
time today detailing what is in it.Apart from the focus of my own formal responsibilities as acting Disability
Discrimination Commissioner, I think disability issues provide a particularly
good focus for discussing moving from the theoretical to the actual in
EEO.

Some of the practical issues in achieving equal opportunity for people
with disabilities are also directly relevant to equal opportunity considered
on the basis of other categories.

In particular, issues of flexibility of working hours, or other flexibility
in working arrangements including home based work, affect opportunity
for some people with disabilities and people with disability carer responsibilities,
but also clearly affect workers with family responsibilities.

From a disability and carer perspective as well as from the perspective
of family responsibilities, there is still much work to be done in working
out in practice these interactions between the world of work and the world
of family and personal requirements. But at least at a theoretical level,
disability policy has a head start to offer in dealing with these issues.

People dealing with disability issues are used to dealing with concepts
like "reasonable adjustment". This concept recognises on the
one hand that equal opportunity can require some positive changes in work
environments or arrangements, not just a change in attitudes or a refraining
from overt discrimination. On the other hand, concepts of reasonable adjustment
recognise that there is a balancing process needed between the needs of
the employee and the requirements of the job to be done and the needs
of the organisation.

One of the limitations of a lot of discussion of discrimination on other
grounds such as race and sex is that it occurs in the realm of moral imperatives
rather than this more messy world of balance and compromise. Issues like
the fit between work and family or carer responsibilities clearly need
some attention to issues of balance if sustainable changes in this area
are actually to happen in practice.

In addition to these areas where disability and other EEO categoris present
similar issues, there are a host of very practical issues presented by
disability which require attention and expertise over and above what is
available from experience in areas like sex or racial discrimination.

We are a long way past the point where equal employment opportunity for
women in higher education was the lack of female toilets - at least I
hope we are. But that sort of practical barrier remains ever present for
people with disabilities:

• Are the buildings accessible - not just the university's own buildings
  but those of other organisations where conferences or training or teaching
  or recruitment occurs?
• Is information accessible to people who cannot use print on paper?
• Is equipment such as communications and information technology accessible
  to people with physical or sensory disabilities?

These and many other practical issues will be familiar to many of you.
I mention them only to emphasise that, for all the progress being made
in many respects, people with disabilities still frequently encounter
barriers which have the practical and the emotional impact of facilities
available to "men only". Or indeed to "whites only".

The Disability Discrimination Act

I want to discuss briefly the Disability Discrimination Act and the experience
of the Human Rights and Equal Opportunity Commission in administering
it.

I do not mean that I am going to give a tutorial on the detailed provisions
and legal effect of the D.D.A.

For people seeking this kind of information, large and increasing amounts
of information on the Commission's interpretation of the DDA is available
in the disability rights section of our Internet site or in other formats
on request.

This includes a very substantial "frequently asked questions"
on employment, which updates and expands on the advice and opinion contained
in the "Employer Manual" issued back in 1994, but which also
draws on case law, complaint handling and other experience since then.

I am interested in suggestions for additional issues which this information
material needs to address, and in ways that we can better ensure that
information is available to people who need it, and I will come back to
those issues. But it would not be a good use of our time together today
for me just to recite material that is already available.

History of the DDA: employment a principal focus

What I do want to discuss briefly is the history of the D.D.A., the purposes
for which it was introduced, and how effectively those purposes are being
achieved regarding employment in particular.

Work on the development of the DDA started in 1991 as part of a national
strategy to achieve equal employment opportunity for people with disabilities.
In addition to concerns for social justice in its own right, one of the
clear motives for this strategy was an economic motive: to reduce unemployment
and increase labour force participation by people with disabilities and
reduce welfare dependency accordingly.

National legislation on disability discrimination in employment was one
of the major recommendations of the Labour and Disability Workforce Consultancy
report which some of you may remember as the "Ronalds Report",
among a number of other reports leading to the legislation. These reports,
and the second reading debates on the Disability Discrimination Bill,
indicate a range of barriers to equality of opportunity in employment
intended to be addressed by the legislation, including:

• discriminatory attitudes or lack of awareness leading to direct discrimination
• existing rules and procedures having disadvantageous effects on people
  with disabilities
• physical barriers in premises and equipment
• barriers in information and communication.

Barriers addressed by the DDA arise at all stages of the employment process:
in entry to employment, in opportunities for promotion and advancement,
in benefits of employment, and in dismissal.

The passage and existence of legislation was not seen then and should
not be seen now as an end in itself. It was and is an investment by government
and the community intended to pay dividends in large scale social change
towards a more equal society.

As the late Elizabeth Hastings pointed out as Disability Discrimination
Commissioner, the aim of Australia's anti-discrimination laws is not restricted
to dealing with some hundreds of complaints each year - as important as
that role is. The objective is on a much larger scale of public policy:
to eliminate discrimination as far as possible.

Other access issues as preconditions for EEO

The initial intention of the federal government when development of the
DDA commenced was only to legislate on employment.

The Commission and disability community organisations argued that legislation
covering employment by itself would have very little impact.

Equal opportunity in work is not only a matter of attitudes and practice
in the workplace itself. It depends on equality in the "pieces"
that work is made up of - skills formation, accessible communications
and information systems, accessible premises, accessible transport and
so on.

So, even at a conference focussing on equal employment opportunity, I
do not think that any apology is needed for the fact that we have applied
more of our slender policy resources to large scale practical access issues
in these other areas than to work focussed purely on EEO - not that we
have neglected employment issues either.

Progress on accessible transport

Accessible public transport is probably the area where the largest scale
practical effects of the D.D.A. have been seen so far. This is a particularly
significant achievement because lack of public transport accessibility
has been consistently identified for many years as one of the major barriers
to equal participation by people with disabilities in economic and social
life, including the crucial areas of education and employment.

Prompted by a series of complaints early in the life of the D.D.A, Transport
Ministers around Australia initiated development of national standards
in 1995 to set out how public transport accessibility should be achieved
across Australia over time. The process towards final legal ratification
of these Standards has been very protracted and is still not quite complete.
Already, though, many public transport operators have been applying the
draft Standards for several years, so that most public sector bus fleets
for example are close to achieving the first five year target in the standards
even before the Standards actually commence.

One of our great successes in the public transport area was when Melbourne's
tram operators committed last year to accessibility of all new trams,
and to accelerating their acquisition substantially from what they had
previously planned - in return for a five year exemption protecting them
form complaints. Experience indicates that businesses are frequently prepared
to do more in exchange for certainty than they have been able to be compelled
to do by the threat of complaints.

I will come back to the issues of certainty, standard setting and exemption
based processes a little later.

Less evidence of progress on employment

I think we have to say that there is less evidence of the D.D.A. - and
its State and Territory equivalents - being effective in moving toward
the objective of eliminating disability discrimination in employment than
there is in an area like transport.

Evaluating success in policy activities is often difficult, particularly
with an activity like employment which involves tens of thousands of organisations.
We do not have any comprehensive reporting regime even for larger employers
on measures taken and progress achieved towards equal opportunity for
people with disabilities. There is no equivalent for disability to the
measures for monitoring women's equality through the Affirmative Action
Agency - even with the limitations that have been noted about the effectiveness
of those measures.

As the Disability Discrimination Act approaches its second decade and
as we are now 20 years on from the International Year for people with
disabilities, HREOC is keen to see a better basis established if possible
for evaluation of success or otherwise in moving towards the elimination
of discrimination. We are talking with the Federal Office of Disability
and other organisations about what might be done to establish meaningful
benchmarks - to determine what base lines we are coming from and where
we might get to. We would very much welcome any input from equal opportunity
practitioners on approaches to benchmarking and monitoring progress towards
equality.

Such evidence as we have seen, though, on the employment position of
people with disabilities is not encouraging:

• Overall employment rates for people with a disability do not appear
  to have been improved markedly since the passage of the DDA. We still
  see frequent reference to people with disabilities having ten times
  the average unemployment rate. I would like to see more precise figures on this issue being produced
  as a standard part of the Australian Bureau of Statistics regular statistics
  on employment, but the figures which are quoted are cause for concern.
• Representation of people with a disability within Commonwealth employment
  has in fact decreased over the last decade, as indicated by the Australian
  National Audit Office in its report Equity in Employment in the Australian
  Public Service. While the APS may not be typical of all employment in
  Australia, that is not a very positive sign.

I would be interested to know whether the higher education sector has
been performing better than this.

Employment complaint experience under the DDA

This depressing picture on overall success in improving the employment
position of people with disabilities may seem hard to reconcile with the
many success stories available though HREOC's web site of complaints successfully
resolved by conciliation, and the smaller but significant number of cases
of disability discrimination in employment redressed through the courts
or through HREOC's former tribunal function.

From the outset employment complaints have been the largest proportion
of DDA complaints. But in most cases employment discrimination complaints
have simply provided individual remedies and it is harder to see broader
impacts in achieving the elimination of discrimination.Decisions on complaints have emphasised some important principles.

In particular, a number of decisions have given effect to the important
point that the principle of reasonable adjustment is a central part of
disability discrimination law, even though the D.D.A. itself does not
expressly set out or describe the extent of this principle. Decisions
have been made about reasonable adjustment in provision of equipment and
in supervision and other management issues.

Decisions have also emphasised the need for close attention to the inherent
requirements of the particular job and the particular person's ability
to perform those requirements, rather than acting on stereotyped assumptions.
For example, complaints by colour blind people have succeeded in some
cases and not in others, because of variations in the nature of the jobs
concerned and the nature of the particular person's disability in different
cases. But after more than eight years of operation of the legislation
there are still only a few handfuls of decisions, so the amount of useful
precedent on what is and is not required is still small.

Unsuccessful attempt to provide more certainty through
standards

Open ended discrimination provisions such as those under the DDA and
State/Territory equivalents provide a high degree of flexibility in considering
the individual circumstances of cases. However they also carry a high
degree of uncertainty and lack of specification of rights and obligations.

Similarly to public transport issues, there has been a desire for more
certainty on employment discrimination issues than is provided by the
general and open ended non-discrimination provisions of the D.D.A.

As is the case for public transport, the D.D.A. provides for standards
on employment discrimination to be made, to make rights and obligations
under the DDA clearer and easier to understand, enforce and comply with.

Over three years of effort - by HREOC, by other areas of government,
and by industry, disability community and trade union representatives
- was dedicated to development of draft disability standards on employment,
from 1995 to 1999.

The major difficulty which stalled standards development on employment
was this. All participants agreed that it was too difficult to identify
and agree on prescriptive standards setting out practical rights and obligations
in detail. But the non-prescriptive, principle based draft standards which
were prepared as a result were then criticised by many parties for failing
to provide detailed and definite answers to questions about rights and
obligations in particular employment situations or for particular disability
issues.

Guidance material

As I have already noted, the Commission has extensive guidance material
available on its internet site as "frequently asked questions"
on employment. This material occupies much the same intellectual territory
as the non-prescriptive draft standards. In fact it is largely based on
the draft standards together with material from decided cases and conciliated
complaints. It does not give definite solutions for particular situations
but sets out principles to apply.

Employer representatives have asked for the description of this material
to be changed to "guidelines" or "advisory notes"
to make its status clearer.

We will be seeking confirmation shortly from the Office of Regulation
Review that, like HREOC's Pregnancy Guidelines, this material does not
represent new regulation but only explains the effect of existing regulation
and so does not need to undergo the demanding and lengthy Regulation Impact
Statement process before it can be issued in its re-badged form as guidelines.

Possible uses of temporary exemptions mechanism

It is clearly worth looking at ways to gain a higher profile for the
information and advice that HREOC has available on disability and employment
issues. But it has to be recognised that guidelines are not a complete
substitute for Disability Standards as they do not deliver any additional
legal certainty for parties concerned. The Federal Court is under no obligation
to give any weight to Commission guidelines and is free to form its own
judgment.

Also, whether it is issued in its present question and answer form, or
as guidelines, or as standards, this material is closer to the "theoretical"
end of the spectrum than the "actual" or practical.

Given the slow progress we have seen towards adoption of Standards, not
just in employment but in any area, the Commission has taken the view
that we have to explore all available mechanisms for the same purposes.
Relying solely on an individually-based and essentially private complaint
investigation and conciliation process, followed by hearings in a small
minority of cases has not been sufficient as a means of achieving elimination
of discrimination in areas including employment and education.

The DDA provides for the granting of temporary exemptions (up to 5 years).
The Commission has decided that it will grant an exemption where this
advances the objects of the Act. The exemption process has potential for
significantly wider use than it has had so far, as a positive means of
structuring movement towards elimination of disability discrimination.

This potential may be easiest to see in an area like public transport
where appropriate results can be specified in very concrete terms - this
many accessible buses operating by this date and so on. In employment
it may be harder to specify results in detail. But what could be specified
are appropriate processes, both to prevent discrimination occurring and
to provide more speedy redress when it does occur.

In her 1997 "Foundations" paper the late Elizabeth Hastings,
then Disability Discrimination Commissioner, emphasised the need for other
agencies rather than only human rights and anti-discrimination specialist
agencies to do their share of work in achieving a non-discriminatory world:

"A human rights agency in the position of the Human Rights and
Equal Opportunity Commission has neither the expertise nor the authority,
nor sufficient personnel, to regulate everything itself. As far as possible
the aim should be to have access and equality built in to the ordinary
way of doing things rather than being an additional set of requirements
subsequently imposed from the margins."

We have not as yet had any applications for exemption from the legislation
based on the proposition that an industry or organisation's own complaints
system and policies should be allowed to operate in place of the process
of complaints to HREOC and to the Federal Court.

There could be good grounds to grant such an application and allow this
approach a temporary and reviewable opportunity to prove itself, so long
as it could be demonstrated that such a system showed reasonable prospects
for achieving better results in advancing the objects of the legislation.

Employers might consider applying for exemption, for example, on condition
that they have and apply their own effective anti-discrimination policies
and procedures, whether voluntary (in the case of private employers) or
required by other legislation (in the case of some government employers).

Of course, any exemption application made would have to be considered
on its merits and it would be wrong to appear to give any guarantees in
advance. Also, such applications would have to go through the Commission's
public process, which requires their publication on our website, and the
seeking of submissions on whether or not they should be granted. I simply
seek to leave these issues with you for consideration, because I think
that we could be doing better co-operatively than we have done so far.

Practical advice and information

The other approach I want to mention today moves away from emphasis on
legal rights and responsibilities and perhaps has more to say on actual
or practical realisation of equal opportunity.

The great limitation of standards or legislative approaches in relation
to employment is the difficulty of dealing with the vast variety of disability
issues and employment issues that arise. Practical examples of where a
problem has been successfully dealt with in practice may be a much more
important part in achieving change to ensure equal opportunity for people
with a disability than official exhortation about how beneficial, and
how compulsory, change is.

One of the great reported success stories of the United States experience
on employment and disability is the Job Accommodation Network, which provides
human advice and computer based resources to share experience in making
adjustments to achieve equal opportunity for people with a disability.
We do not have anything of that scale in Australia - a small number of
non-government resources struggle to meet requests for information and
many employers struggle to find any useful sources of advice or information
at all.

We have started to discuss needs and possibilities in this area within
government. I would very much welcome input from within the higher education
sector both on what needs you see for this kind of practical information
resource, and on resources you are aware of which we could seek to make
more widely known.

Conclusion

It will be obvious to you that I have not provided here a step by step
map for moving from the theoretical to the actual in the quest for equal
opportunity in employment. But I hope that the approaches I have outlined
offer some possibilities for you to pursue. I wish you well in your further
discussions at this conference and I look forward to receiving information
and questions you may wish to provide, whether today or by email to my
office.