Introduction
Disability discrimination complaints
Specific disability issues
Employment
Goods and services
Industrial context
Education
Introduction
Ten years ago the NSW Anti-Discrimination Act (ADA) covered ‘physical and intellectual handicaps’, described as ‘defects or disturbances in the structure and functioning’ of the body or the brain. To come within the definition people had to prove they had a ‘defect’ which limited them substantially in an area of their life.
The provisions reflected the thinking and language of previous decades and left much uncertainty about coverage of psychiatric and psychological conditions, learning disabilities and conditions such as HIV/AIDS. Amendments to the ADA in 1994 introduced a more comprehensive definition of disability and allowed a ‘representative body’ to lodge complaints on behalf of a person or group of people.
However, Part 9A of the ADA, which deals with equal employment opportunity in the public sector, still uses the old definition of disability discrimination. In addition, the ADA still allows for discrimination to be lawful if it is necessary to comply with another piece of legislation, such as occupational health and safety laws.
The federal Disability Discrimination Act (DDA) does not have a similar provision, but includes a sunset clause for the exemption of discriminatory pieces of legislation. The Anti-Discrimination Board and the NSW Attorney Generalís Department ran seminars for government agencies to help them identify discriminatory provisions in legislation and decide when to apply for an exemption. Many pieces of legislation were amended as a result.
Disability discrimination complaints
In the past decade the Board has received over 2,500 formal complaints of disability discrimination, as well as many more enquiries that do not lead to formal complaints. Disability discrimination complaints now represent one in five of all complaints lodged with the Board, and the vast majority are lodged by people with physical disabilities. In 2001/2002 the Board received 332 disability complaints making up 20.4% of all complaints lodged with the Board.
The ADA has enabled people to argue for their rights, or prevent their dismissal from employment. They have been able to conciliate outcomes that involve changing the design of their job or obtaining equipment that enables them to continue in their job. In many instances employers and other respondents have been willing to amend their policies and educate their staff on their responsibilities under discrimination law.
The bravery of people in taking up issues of discrimination and opening their lives to scrutiny cannot be underestimated. The critical element in many disability complaints is the extent to which the respondent is required to accommodate a person’s disability. This means a person making a complaint must generally provide detailed information about the nature of their disability, which may become public if their complaint proceeds to a Tribunal or Court.
This is never an easy thing to do and requires an enormous amount of courage, tenacity and hard work. And many people with disabilities operate under additional constraints such as illness, ongoing medical treatment, lack of mobility, lack of access to information or the extra time required for everyday tasks, which make the process even more arduous.
Specific disability issues
In the past decade the Board has seen an increase in the number of complaints lodged by people with psychiatric disabilities. They face enormous discrimination in securing and retaining employment, goods and services, education and housing, as do people with intellectual disabilities. The Board is particularly concerned about the high proportion of people with psychiatric and intellectual disabilities in the prison system.
Another issue of concern is discrimination against people living with HIV/AIDS. Our 1994 enquiry into HIV/AIDS discrimination provided an impetus to public policy and education programs to deal with this issue. In 1994 the ADA was amended to make it unlawful to vilify people on the ground that they are, or are presumed to be, living with HIV or AIDS.
The level of condemnation of people with HIV/AIDS has decreased as the public has become better educated on the issue, but the Board is aware of the level of vilification directed at people with other kinds of disabilities. We have recommended that vilification on the ground of disability be added to the kinds of vilification protected under the ADA.
Discrimination against people who have Hepatitis C was identified as a major issue by another public enquiry held by the Board in 2001. Much of the discrimination associated with Hepatitis C is driven by irrational fears about the way in which it is transmitted, and the perceived link with illicit drug use.
The enquiry found that discrimination against people with Hepatitis C is rife in the health care system, which impacts on health outcomes and prevention efforts. It is also common in employment situations, and there are significant issues in the NSW prison system where prisoners do not have access to sterile needles and safe tattooing services.
Amendments to the ADA that came into effect in April 2002 clarify that addiction to prohibited drugs is not considered a disability in the area of employment. People experiencing discrimination on this basis will not be able to bring a complaint under the ADA.
Advances in genetic technology and the use of genetic information also require vigilance to protect human rights. The Board recently examined the extent to which anti-discrimination laws protect people against discrimination on the basis of their genetic makeup. People may be denied employment or have difficulty obtaining insurance because of genetic testing that indicates they may develop a condition in the future. This may deter people from testing even though it may put them in a better position to prevent the development of the condition.
Employment
Many disability discrimination complaints received by the Board relate to employment. These may involve considering whether the person can undertake the inherent requirements of the particular position, and whether services or facilities that are required by the person would cause unjustifiable hardship to the employer. Employers need to think job design through very carefully to ensure that the stated requirements really are inherent, and how work can be organised to maximise people’s access to and progress in the workforce.
Occupational health and safety regulations also require this to be done, and excluding people with disabilities under the guise of OHS is not acceptable, lawful or sensible. Closer examination often reveals there is a solution that means workers with disabilities do not need to be excluded. This is reinforced by several decisions by the ADT and the previous Equal Opportunity Tribunal, which have rejected OHS arguments put by employers.
Goods and services
Ten years on there has been significant progress in access to goods and services, but it is still not always possible for a person with a disability to get the services they require in NSW, particularly with regard to transport and access to premises.
Making a complaint of disability discrimination is of limited effectiveness because the existing provisions of the ADA, while important, do not require a respondent to do all they reasonably can to redress discrimination in the future. The respondent may be able to make out a defence of unjustifiable hardship at the date of the discrimination at issue, and there is little in the legislation to encourage an analysis of how access may be achieved over a period of time.
A better model may be to impose a positive duty to provide access for people with disabilities, with the role of a court or tribunal being to determine whether this is possible. A defence of unjustifiable hardship could still exist, but courts and tribunals should be able to analyse what could be done to improve access, and, for example, order an action plan to improve access over time.
Industrial context
The past decade has also seen the Board intervening on discrimination matters in several test cases in the NSW Industrial Relations Commission. The Board has argued successfully for a non-discrimination clause in every NSW award, and for the principles dealing with the registration of enterprise agreements to include principles relating to discrimination, including disability discrimination.
We have also intervened in the industrial case that set down the personal carers leave provisions in awards. Most recently, in the State Working Hours Case we argued that the clause dealing with the rights of workers to refuse to work unreasonable overtime must adequately deal with discrimination issues. However, there is still a very long way to go to ensure that people with disabilities have their rights protected in an industrial context.
Education
Another area that requires major attention is the education sector. Despite significant improvements over the past decade there is still a need to tackle systemic discrimination in this area. Many students continue to experience problems with access to educational facilities and programs. Harassment of students with some disabilities continues and much work is still needed for students with disabilities to achieve true equality of opportunity.
