As a disabled person suffering from either a mental or a physical disability, it is illegal for you to be discriminated against purely on the basis of your disability. Disabled people have a wide range of valuable skills and abilities that make our workplaces more diverse and productive. As such, disabled workers are entitled to special pay rates and conditions at work that may assist them in carrying out their professional duties. Along with special working conditions that are usually covered by an award, you will also be protected from discrimination at work and in the process of applying for a job. For example, it is illegal for you to be rejected from a recruitment process because of your disability.

What are an employer’s obligations under the Disability Discrimination Act?

Under this Act, an employer must:

  • Not discriminate against a disabled person and treat them in a less favourable way;
  • Not discriminate in an indirect way which impacts on a disabled employee in a negative way;
  • Prevent and avoid all kinds of harassment that may be inflicted upon a disabled employee;
  • Make reasonable adjustments to assist a disabled person from carrying out their work duties.

An employer can, however, ask questions that relate to your disability in a variety of circumstances:

  • To figure out whether a person can perform certain job requirements that are mandatory for the specific position;
  • To determine rates for superannuation, workers’ compensation and other kinds of insurance; and
  • To become aware of any other matters that may reasonably affect the performance of work.

It must be noted that employers have the right to know about you and your particular skills and abilities in their normal course of knowing what tasks you are capable of successfully completing. However, unnecessarily discussing your disability or conducting inappropriate examinations may constitute discrimination which you have the rights to make an action against.

Exceptions under the Disability Discrimination Act

Under this Act, employers are allowed to conduct certain procedures and make certain decisions that may not be in favour of disabled employees however, these procedures and decisions may not considered to be discriminatory in nature:

  • Making decisions to provide equal opportunity to employees with a disability. This may include making special notes regarding your disability in order implement measures to assist you in moving through the workplace more easily if you suffer from a physical disability;
  • Dismissing or refusing to employ a disabled person because they cannot carry out certain tasks that are inherent to a particular position in the business;
  • Making examinations or enquiries that are necessary to determine superannuation or insurance;
  • Making decisions that are in direct compliance with the law;
  • Making decisions that are necessary to maintain the health and safety of the workplace;
  • Following court orders or orders from a tribunal to fix minimum wages;
  • Determining which employees can be appointed by the Australian Defence Force;  and
  • Determining which employees will be selected to carry out work at the employer’s home.

Conclusion

The Disability Discrimination Act does not cover all the obligations of an employer. State and Territory laws regarding discrimination are also applicable to the workplace and help to regulate the relationship between employers and employees with a disability. To get more information about disability matters in the workplace please see:  http://www.humanrights.gov.au/employment-and-disability-discrimination-act-part-1#whocomply

Lachlan McKnight

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