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Disability rights in the workplace

Brianne Turk

Starting your career with a disability can be daunting. As you make your way towards your dream career, get clear on your employment rights.

Discrimination based on disability currently accounts for the highest volume of complaints to the Australian Human Rights Commission. Disability discrimination occurs when one person is treated less favourably than another, based on disability. It can be direct or indirect.

Direct discrimination is when someone in the same or similar situation to another is treated less favourably. Examples include not being given an opportunity to interview because you’ve disclosed disability, or being asked to leave the staff lunch room because your wheelchair ‘gets in the way’. Indirect discrimination on the other hand, is when a process or conditions appear to treat everyone equally, but actually disadvantages those with disability. For instance, an employer providing written information to all candidates despite a candidate being blind.       

Disability Discrimination Act 1992

The overarching policy designed to protect individuals with disability from unfair treatment is the The Disability Discrimination Act 1992 (DDA). This act promotes equal opportunity, access and rights in the areas of schooling, sport, study, transport, employment and more.

The DDA applies to individuals who experience all kinds of disability, including those who have an intellectual, physical, neurological, sensory, psychiatric or learning disability, as well as those who experience disease, illness, disfigurement or medical conditions. The disability can be temporary or permanent and visible or nonvisible. The DDA covers disability that a person is experiencing now, has experienced in the past, is likely to experience in the future or is assumed to have. It also covers individuals who may be treated unfairly because they use equipment or are accompanied by an interpreter, assistant or trained animal. Additionally, the DDA applies to individuals who are treated unfairly due to their association with a person with disability.

The DDA makes discrimination unlawful at all stages of the employment process, including in:

  • advertising, application, interview and selection processes,
  • decision-making around wage, leave, promotion and training opportunities,
  • termination or demotion practices.

Despite this, graduates with disability have a 10.6 percent lower rate of securing full-time employment in their first year after graduation, than their peers.

The Australian Human Rights Commission and state-based boards

The Australian Human Rights Commission (AHRC) is the statutory organisation responsible for administering a number of federal anti-discrimination policies. The AHRC is under Commonwealth legislation, and has a duty to uphold the United Nations Convention on the Rights of Persons with Disabilities. The AHRC carry out research and inquiries, facilitate reforms, work in partnership with employers and educate individuals.

Each state and territory also has an anti-discrimination board that upholds policy and promotes equal opportunity under state-based laws. These boards provide information about rights and responsibilities in a number of different ways: through websites, direct consultation, awareness-raising activities, educational programs and talks.

If you have any questions about your rights, you can turn to these services. You can also lodge a complaint if you feel your rights are not being upheld. This would be the final step after trying to resolve the matter directly with your employer or through a local advocacy service. Complaints to the AHRC need to be put in writing (assistance is available) and then mailed or lodged online. If the matter cannot be resolved, it will be referred to the Federal Court.    

Following is a list of the state based anti-discrimination boards:

Rights

  • As you embark on your career, it’s important that you understand your work-related rights.
  • As a person with disability, you have the right to:
  • Equal opportunity at all stages of the recruitment and employment process
  • Utilise disability support services, including financial assistance where eligible (see ‘Employment support for individuals with disability’)
  • Decide whether you want to inform your employer of your disability, and decide how much information you wish to share (see ‘Disability disclosure: the pros and cons’) *If your disability is likely to impact your work, you are legally obligated to share this
  • Utilise workplace adjustments to support the impact of disability on work duties (see ‘Workplace Adjustments – what are they?’)
  • Lodge a complaint
  • Safe working conditions
  • A discrimination-free environment
  • An appropriate evacuation plan

All employers must ensure that there is an appropriate evacuation plan for emergencies. A Personal Emergency Evacuation Plan, or PEEP as it is often referred to, is a plan that identifies agreed-upon actions that will enable an individual with disability to safely evacuate a building or location. It must take into account any assistance required.    

Exemptions

There are a couple of instances where employers have the right to treat individuals with disability differently. One of these situations is where an individual cannot – due to the impact of their disability – perform the essential requirements of a role. In this case, it should be proved that the employer cannot reasonably provide adjustments that would enable the carrying out of this position.

Other examples include reducing the wage of an individual to directly reflect their productivity (Supported Wage System) or the exemption of people with disability from certain combat and peacekeeping duties.

Support  

As you move into employment and navigate new challenges – including other people’s behaviour and perceptions – you might feel that you need some advice and support. Read up on overcoming difficulties and building resilience to help get you through your day.