Disability discrimination

Legislation:

Equal Opportunity Act 1984 (SA)
Disability Discrimination Act 1992 (Cth)

Areas of discrimination on basis of disability under SA law

Under the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of impairment (whether physical or intellectual). This does not have to be an ongoing impairment, it can be an injury. Discrimination on the basis of intellectual impairment does not include any condition attributable to mental illness.

Discrimination is prohibited in the following areas:

education
employment
accommodation
interest in land
conferral of qualifications
provision of goods and services
superannuation
membership of associations
advertising

Exemptions

employment within a private household
employment, where a person suffering from an impairment would not be able to adequately perform the work required for employment without endangering themselves or others or to respond adequately to emergency situations reasonably anticipated in connection with the work required
conferral of qualifications, where a person suffering from an impairment would not be able to perform the inherent requirements of the occupation adequately or safely
educational institutions established wholly or mainly for the benefit of students with a particular impairment
disposal of land by will or gift
provision of goods and services where the standard of provision required would be onerous or unreasonable
insurance: discrimination in the terms of an annuity, life assurance, accident insurance or any other forma of insurance where it is based on reliable actuarial or statistical data
superannuation, where based on reliable actuarial or statistical data
superannuation schemes provided for employees to which the employer makes a contribution and where the greater number of employees reside outside of SA
charities and projects for the benefit of persons with a particular disability
salary rates
sporting activities
physical inaccessibility of premises

Areas of discrimination on basis of disability under Commonwealth law

Under the Disability Discrimination Act 1992 (Cth) disability is broadly defined to include physical, intellectual, mental and sensory impairment as well as diseases (such as AIDS) [s 4]. This definition includes past, present, future and imputed disabilities. Therefore, if someone was believed to have a disability such as AIDS when she or he did not, and the person is discriminated against on the basis of having AIDS, the discrimination is unlawful under the Act.

employment (applies also to partnerships, contract workers and employment agencies)
qualifying bodies (i.e. bodies that award professional and trade qualifications)
registered organisations- see Workplace Relations Act 1996 (Cth)
education
access to premises
goods and service
accommodation
land
incorporated clubs and associations
sport
administration of Commonwealth laws and programs

Exemptions

Employment: it is not unlawful if:

a person is unable to carry out the inherent requirements of the job, or
in order to carry out the inherent requirements of the job the employer would have provide such facilities or services as would impose unjustifiable hardship to the employer, or
the employment is for domestic duties in a private residence

Qualifying bodies, where the person cannot meet the major inherent requirements of profession or trade
Education: it is not unlawful if:

it would impose unjustifiable hardship on the educational facility, or
the education is for people with a particular disability

Accommodation: it is not unlawful where:

the accommodation is for a particular disability and is supplied by a voluntary body
provision of the accommodation would cause unjustifiable hardship
the accommodation is only for a maximum of four people and includes the owner or a near relative in residence

The following, whilst not strictly speaking exemptions, are defences against an action of disability discrimination and also need to be considered:

Access to premises: it is a defence if altering the premises would result in unjustifiable hardship (ie if the building was built prior to the Act and is inaccessible)
Goods and service: it is a defence if the supplier would suffer unjustifiable hardship to supply the goods in the way they need to be supplied
Land: it is a defence if the land is being disposed of according to a will or by deed
Incorporated clubs and associations: it is a defence if the association is for people with a particular disability or if there is unjustifiable hardship in providing the benefit in a particular way which is needed as a result of a disability
Sport: it is a defence if the sport is organised for people with a particular disability or the person cannot perform the necessary actions required for the sport or a selection is based on relevant skills

Making a complaint

Time limits: the Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 12 months previously. The Equal Opportunity Commission requires a complaint to be made within 6 months of the event being complained of.

Bus access not available for wheelchairs

Bianca was wheelchair bound and in need of transport to get her to work. She rang a metropolitan bus company to enquire the times when a bus with wheelchair access would be available. The bus arrived but the automatic ramp had physically been removed from the bus. She had to wait for later bus after the peak travel time for commuters had passed.

Bianca felt she was put at risk due to her inability to ride on a bus and made a complaint of impairment discrimination. She said that the timetable presumes that wheelchair bound passengers do not require a commuter service and this is indirect discrimination based on a presumed characteristic that physically impaired people do not have employment. She also states people with disabilities are at times extremely vulnerable, especially at night.

In response, the company insisted that Bianca's fears did not arise because of impairment discrimination and it had policies in place outlining service to people with disabilities as well as providing ongoing education and training to employees.

Outcome: In conciliation the bus company agreed to:

Compensate Bianca for $1,000 and apologise to her for any distress, humiliation or injury to feelings suffered
Review its accessible bus timetable
Receive information regarding disability awareness with a view to implementing additional disability awareness training in the driver training induction course
Prepare ramp manual instruction sheets for placement in buses