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Disability Discrimination and Employment Issues Australia

  • Publish Date : 2009/01/04 - (Rev. 2019/02/14)
  • Author : Lewis Stratton

Synopsis: Australia has a range of legislation that addresses employment discrimination on the basis of disability.

Main Document

Unfortunately the word disability suggests high dependence and a lack of competence in the minds of some. Underlying prejudice often focuses on the "difference", rather than the abilities and capacities of those affected by a disability. Employers reflect the range of beliefs and prejudices evident in the wider community.

  • Disability - The Red Flag!
  • Disability - What Do We Mean

The term "disability" is widely, and loosely used, to cover a range of functional impairments, injuries or loss of function. Some disabilities (such as short-sightedness) are quite socially acceptable and provide no barriers to social interaction, services or employment. Other disabilities, such as mild hearing loss, are not apparent to others and can be managed with a minimum of difficulty.

Unfortunately the word disability suggests high dependence and a lack of competence in the minds of some. Underlying prejudice often focuses on the "difference", rather than the abilities and capacities of those affected by a disability. Employers reflect the range of beliefs and prejudices evident in the wider community.

When it comes to accessing services and work opportunities, perceptions about disability are as important as the disability itself.

Legislative Issues

Legislation in many jurisdictions seeks to prevent direct or indirect discrimination on the basis of disability, often with reference to a range of prescribed disabilities.

For example, Australia has a range of Commonwealth and State legislation that addresses discrimination on the basis of disability. Some of this legislation is framed as Equal Opportunity (EO) legislation which identifies many kinds of discrimination, whilst other legislation is very specific to disability (e.g. Commonwealth Disability Discrimination Act 1992).

The Disability Discrimination Act requires employers to make "reasonable adjustments" for people with a disability, who in all other respects are competent and qualified to undertake the work. The definition of "reasonable adjustments" is somewhat unclear, but the intention is very clear that employers are required to recruit candidates on merit.

Such legislation provides a framework for the individual to assert their right to access services and employment, although the practicalities of asserting these rights can make it a major challenge.

Disability and the Workplace

Increasingly, organizations are recognizing a social and moral responsibility to remove discriminatory practices with regard to a number of issues. This is true of disability. There is a growing recognition that a healthy work place is one that encompasses diversity and capitalizes on the ability of staff.

Many organizations, and the people in them, are committed to removing discriminatory practices. It is more common to see themes such as "Celebrating Difference" or "Managing Diversity" being promoted within organizations.

For people living with a disability these are encouraging signs that the door may not always be politely, but firmly slammed in their faces.

The Candidate's Dilemma

You have identified a position of interest and intend to apply. When should you let the employer know of your disability

The first question to ask is whether you have the competence and qualifications to undertake the work. This is the starting point for any candidate. The main, and legitimate interest of an employer is whether a candidate has the capacity to undertake the role successfully.

Typically, your next task is to prepare your application, consisting of your Resume or Curriculum Vitae (CV) accompanied by the covering letter, and in many instances specific responses to the selection criteria provided by the employer. Your application package may not be the best way to share information about any specific disability. Its purpose is to highlight what you can do, without seeding doubts about competence. Obviously it is important that any assertions you make about your abilities and experience are honest and can be supported by evidence.

It is likely you will need to discuss your disability related needs if selected for interview. This could be in the context of having access to, or bringing in specific equipment, physical access requirements or the format of the interview itself. An open discussion with the employer is appropriate here, but remember to emphasize what you can bring to the organization. Make it clear that the issue of disability is a secondary consideration. At this stage you have already gained the advantage of having been assessed at a preliminary level as a potential candidate on the basis of your merits.

The employer will no doubt be interested at this stage in what "reasonable adjustments" will need to be made in an ongoing way if you were the successful candidate. If these adjustments really are low level in nature, take the opportunity to have the conversation at this point. Otherwise, you might choose to respond with a statement such as "I'm really pleased to have this opportunity to attend an interview. I'd be happy to have a more detailed discussion about my specific needs at interview". Interviews are often conducted by a panel rather than an individual, and this approach allows you to have direct access to all those involved in making the selection decision. The interview will also give the employer or selection panel the chance to meet you and deal with you as a person, rather than as a name on paper.

Managing Selection Outcomes

If selected for the position, WELL DONE! If not, seek feedback as to:

  • The reasons you were not selected
  • What you might do to address any professional deficits identified in the selection process

Ideally, feedback should be freely available to any candidate.

You may feel that the feedback provides adequate and appropriate explanation about the selection decision and use the feedback to strengthen your career planning strategies.

However, feedback may strongly suggest to you that your disability has unfairly influenced the outcome. You may have recourse to lodging a grievance with the organization itself (e.g. with Human Resources) or externally (an EO Commission or other authority with delegation to arbitrate in these matters).

There is a natural reluctance to "stir the pot" and perhaps suffer further exclusion as a result. However, it might be more useful to operate on the basis that you have nothing to lose by confronting unfair decisions, and hold organizations accountable for inappropriate decisions. If there is a Commission or relevant authority in your jurisdiction, a confidential chat with an adviser may be helpful in determining your course of action.

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