Section 46 also does not give any details of what is reasonable and what is not in this area. The existing provisions may be seen as leaving employers uncertain on what questions are permitted, and people with a history of disability or compensation claims may not have sufficient protection against unfairly being excluded from consideration for jobs on the basis of this history.
DDA Standards could specify more clearly what is permitted in this area. Further input from interested parties is requested on what standards would be acceptable in this area before the Sub-committee proposes any option.
A particular problem raised with HREOC by some employers is that some State laws appear to require employers to request information on previous work-related injuries from employees before commencement, or be compelled themselves to accept liability for claims relating to these injuries. DDA Standards may need to address this situation, either by permitting questions for this purpose, or by overriding the State laws in question.
For what purposes should information collected be used, and how should confidential information be protected? Fear that information, which is legitimately required for one purpose, will be used for other, less legitimate purposes, and fear that personal information will not be kept confidential, may discourage some people with a disability from giving accurate information to employers. Improper use or dissemination of disability related information could constitute unlawful discrimination under existing provisions of the Act, depending on the circumstances.
DDA Standards could perform a useful role by spelling out requirements for employers in this area more clearly. Interested parties may wish to consider whether present provisions under the Privacy Act -either the Information Privacy Principles which apply to collection, storage and use of personal information by Commonwealth authorities, or the requirements which apply to holders of Tax File Number related information, offer appropriate models in this respect, or whether there are other appropriate models in existing legislation, policies or guidelines.
The Sub-committee suggests that more detailed provision on some issues in this area may be possible and appropriate. What provisions should DDA Standards contain to make rights and obligations clearer on accessibility of interview venues?
Should these provisions require accessibility in all cases, only where requested, only where reasonable, or regarding specified employers? DDA Standards could require that any interviews be conducted in an accessible venue:. It may be argued that there is no point requiring an accessible interview venue if the employer's premises are not accessible, and hence that any standards should relate to the level of accessibility of work premises rather than dealing separately with interview venues.
Against this, if a person with a disability is able to participate equally in the selection process and demonstrate that he or she is the best qualified person for the job, in some cases at least this may have a significant impact on legal and practical decisions regarding accessibility of the workplace more generally.
That is, employers may be more prepared to make adjustments to accommodate a particular person who has been shown to be a valuable potential employee, than to make adjustments because of an abstract obligation to do so. Moreover, the interview process, if the person with a disability is enabled to participate equally in it, may well identify achievable and affordable means of reasonable adjustment in the job which the employer would not otherwise have been aware of. Providing an accessible interview venue will in most circumstances be far more readily achievable than ensuring accessibility of every part of the employer's work premises.
Failure to do so is correspondingly far less likely to be able to be defended as reasonable under the existing DDA provisions. It is suggested, therefore, that equal access to any interview venue be required in all cases. Failing this, such a requirement appears appropriate at least for government employment.
Should DDA Standards contain specific provisions, and if so what, on methods of conducting interviews? A person with a disability clearly does not enjoy equal employment opportunity if he or she can attend the interview venue but can not interact with the interviewer or interviewers on equal terms with other people. These provisions refer to assistance which a person with a disability provides for him or herself. However, the indirect discrimination provisions of the DDA also require employers, in at least some cases, not only to permit forms of adjustment such as these provided by the person with a disability, but to provide some forms of adjustment or assistance to the person with a disability more actively where this is reasonable.
It may be possible to specify some aspects of the interview process in addition to basic physical access as required in all cases, or in all cases for employers of a particular size or type. Other aspects of the interview process, however, relating to individual requirements of people with a disability, may not be feasible to require as a matter of routine rather than on request.
For example, it would not be practical to require a sign language interpreter not only on request but for all job interviews in case an applicant is Deaf - apart from any other reasons, there would not be enough interpreters available to make this possible.
Some forms of adjustment require no or minimal inconvenience or expense and may be possible to require to be provided whenever requested. For example, if a person indicates that he or she needs to lip read, it would appear to be reasonable for the interview room and the interview to be arranged to make this possible.
Similarly, it would appear reasonable to allocate a person with a disability an interview time in a particular part of the day where this is requested due to factors such as the particular inadequacy of accessible transport during peak demand periods.
Other forms of adjustment, such as provision of interpreting or other assistance, however, may require more significant expense or inconvenience.
Should these forms of adjustment be required to be provided by employers? DDA Standards might also indicate any arrangements, equipment or assistance which, although relevant to equal participation in selection processes, remain the responsibility of the job seeker rather than the employer. Similar issues arise regarding responsibility for equipment, assistance or other adjustments in the course of employment, and are discussed in that context later in this paper.
Should DDA Standards contain specific provisions, and if so what, on tests for job applicants? For example, a written test is likely to disadvantage people whose disability either affects ability to deal with written material or has resulted in educational disadvantage including literacy skills.
If ability to deal with written material is not part of the inherent requirements of the job, or cannot otherwise be reasonably be justified as a job requirement, such a test could be found to involve unlawful indirect discrimination under the existing provisions of the Act. The U. Equal Employment Regulations under the Americans with Disabilities Act provide that it is unlawful to use a test which tends to screen out people with a disability which is not "job-related for the position in question" and "required by business necessity".
The existing provisions of the DDA also cover, and DDA Standards should cover, situations where a test is applied to people with a disability which is not applied to people without a disability. For example, the New York Fire Department required female applicants to meet certain standards of fitness and strength, which could have been seen as reasonable and sufficiently job related, except that male fire officers had not been required to satisfy the same tests, and generally could not pass them once they were tested.
Should DDA Standards contain specific provisions, and if so what, on selection criteria? The existing provisions of the DDA require that selection criteria whether written or less formal should not directly or indirectly exclude a person with a disability because of his or her disability, except where:. DDA Standards could simply restate this position.
However, there are a number of issues where more detailed provision may be appropriate. Increasing emphasis has been placed, in a number of industrial relations contexts, on identification and measurement of "key competencies" for a job. These concepts may be relevant to determination of the inherent requirements of a job and a person's ability to perform these requirements under the existing provisions of the DDA.
Interested parties may wish to consider whether DDA Standards should specify a relationship between inherent requirements and key competencies. The established approach to key competencies is as follows:.
Establish the key functions of the job. These are "units of competence". As a rule of thumb, there should be no more than Write down the measures that can be used to indicate whether the task is being performed to the standard required in the workplace. These are the "performance criteria".
Note the range of variables. These spell out the conditions within which the tasks have to be performed. Describe the evidence guide. This optional factor helps assess the performance to measure competency. Competency refers to a person's ability to perform at a satisfactory level in the workplace. It includes a person's ability to transfer and apply skills and knowledge to new situations and a new environment.
It is a much broader concept than simply skill at a task. It includes a set of skills, underlying knowledge and appropriate attitudes. Concepts of key competencies and performance in relation to these are also relevant to discussion later in this paper in section 14, regarding terms and conditions of employment of performance and conduct standards and duties required.
Issue for discussion : What medical questions and examinations should be permitted or prohibited by DDA Standards? Not all employers use pre-employment medicals, preferring to save the expense and rely on other means of assessing fitness for work and other issues where medical evidence might be used. Some employers may also use medical questions or examinations on the basis that this is part of routine pre-employment procedure, rather than because of a decision to use the information for specific purposes.
Medical examinations and questionnaires to which a person with a disability must if answering truthfully give significant numbers of answers which are clearly not the preferred answer, may serve as a significant barrier to people with a disability.
Such questions may make the person with a disability, and other people involved, feel that people with a disability do not belong in the workplace.
There may also be fears of discriminatory use of the information and possible breaches of confidentiality in the case of sensitive information. Equal Employment Opportunity regulations provide that no medical inquiries or examination are permitted until a conditional job offer has been made: before this, applicants may only be asked to explain or demonstrate how they can perform job functions.
Demonstration of ability to perform job functions may cover some issues which would also be covered in a medical examination but clearly is more directly focussed on the particular job requirements. Following a conditional job offer, a medical examination is permitted under the U. Such a medical examination is not required to be restricted to job related issues; however, any decision to exclude a person with a disability on the basis of such an examination must be based on criteria which are job-related and consistent with business necessity.
Harassment is unlawful both in selection for employment and in the course of employment. The DDA section 35 makes it unlawful for an employer or an existing employee to harass someone, who is seeking employment, in relation to his or her disability.
Section 35 also applies to harassment of people seeking to become contract workers or commission agents, but the power to make DDA Standards at present only applies to employment and not to these similar situations. DDA section 36 makes harassment of an employee regarding his or her disability unlawful. Harassment by customers, clients or other third parties is not directly covered by the DDA.
However, sexual harassment law indicates that an employer may have liability for such harassment, on the basis that it subjects the employee to a "hostile working environment" and thus constitutes discrimination in the terms and conditions of work, where the employer does not take reasonable measures to prevent such harassment. The existing provisions of the DDA, however, do not define what harassment means for these purposes, and there are no HREOC or court decisions as yet on the meaning of these provisions.
While decisions under sexual harassment provisions may offer some guidance, they do not give clear and definite answers to the meaning of section 35 of the DDA.
There may be a role for DDA Standards in clarifying issues in this area, and in clarifying the measures which employers are required to take to prevent harassment by co-workers or other parties. Actions which are intended to cause offence or humiliation to a person in relation to his or her disability, or to make work more difficult or unpleasant, rather than being intended for a legitimate purpose, would clearly constitute harassment under the existing provisions.
This appears clear by reference to the ordinary meaning of the word harassment as well as by reference to sexual harassment cases. This would be the case whether such actions were motivated by prejudice or hostility toward people with a disability in general or the particular disability in question, or whether the harassment was motivated by more individual factors e.
Intentionally causing a person humiliation in relation to his or her disability would constitute harassment whatever the actions used to carry out this intention - such as verbal abuse or insults, physical assault, sexual harassment, interfering with a person's possessions, or less direct actions such as unjustified disciplinary action or denial of access to information or facilities required for effective and equal participation in the workplace. More difficult issues arise when actions which cause offence or humiliation in relation to a person's disability are taken without intending this to occur: either because the person taking the action did not consider that their action would be offensive, or because the action was considered necessary for some legitimate purpose despite the possibility that it might cause offence or humiliation.
Issues of this kind arise in relation to questions regarding a person's disability, as discussed earlier in this paper. However, additional provision may be needed regarding questions concerning a person's disability, considered as a form of harassment. Questions for a particular purpose may be permitted: such as to determine a person's ability to perform inherent job requirements, or any needs for reasonable adjustment; but this does not mean that all questions which are intended for this purpose should necessarily be permitted.
For example, any employer would expect to be able to ask applicants a question such as "What makes you think you can do this job? Not all issues in this area are so clear cut as the examples above: an employee may be offended by requests particularly repeated requests regarding whether a particular reasonable adjustment is needed, while the employer is seeking to protect the employee's interests and avoid potential discrimination liability for failing to provide the adjustment.
Under the Sex Discrimination Act, sexual conduct is unlawful as sexual harassment where the harasser either knows it is unwelcome, or else ought reasonably to have known that it would be unwelcome and offensive.
The basis for this is that sexual conduct is not part of work requirements, and that therefore no-one has to put up with sexual conduct as part of the work environment if it is unwelcome to them.
The existing provisions of DDA are likely to have a similar effect regarding disability-related conduct which is not based on a work-related purpose. That is, unwelcome and offensive disability-related actions which are not based on a work-related purpose would be likely to constitute harassment where the person taking these actions either knows, or ought reasonably to have known, that the actions are unwelcome and offensive.
However, this analogy based on sexual conduct and sexual harassment law is not sufficient to deal with all issues which may be seen as disability harassment.
Not all disability related questions or actions which may cause distress, offence or humiliation are as irrelevant to work functions as are sexual questions, comments or behaviour. For example, an employer may well know, and certainly should reasonably expect, that it may cause offence, distress or humiliation for a person to be dismissed because of an inability to perform inherent job requirements, or to be counselled in an attempt to rectify inadequate work performance which may be related to his or her disability.
But this does not mean these actions are or should be prohibited, or can, in themselves, be regarded as harassment. Where an action is intended, and is only what is reasonably necessary, for a legitimate work-related purpose, a complaint of harassment would not succeed under the existing provisions, and should not be possible under DDA Standards. Where an action can be shown to be intended for the purpose of causing offence or humiliation, or for some other discriminatory purpose, even though it is also intended for a legitimate purpose, the person taking the action would be liable under the existing provisions of the DDA, since as provided by DDA section 10 an action done for a discriminatory reason as well as other reasons is taken to have been done for the discriminatory reason.
This leaves unresolved, however, issues where a question or other action is intended for a legitimate purpose, but goes beyond what may be seen as the minimum e.
Like other employees and potential employees, people with a disability have a right to expect freedom from unnecessary offensive behaviour or humiliation at work or in seeking employment. As discussed in relation to discriminatory questions, however, there may be concerns that restricting unwelcome disability related actions, to permit only those that can be shown to be strictly necessary, could prejudice the interests both of employers and of employees or potential employees with a disability.
This could occur by discouraging communication on, and action to address, important work related issues including reasonable adjustment, performance of inherent job requirements and health and safety issues. Interested parties may also wish to consider in what circumstances, if at all, unwelcome offers, or provision, of assistance to a person with a disability, in performance of work related functions or in other respects, may constitute harassment which should be dealt with by DDA Standards.
The DDA makes direct or indirect disability discrimination unlawful regarding the terms or conditions which are offered to persons seeking employment or which are afforded to employees. Matters included within "terms and conditions of employment" are not defined by the DDA.
General employment law, and cases under other discrimination laws, indicate that terms and conditions of employment includes express terms of a contract of employment; any terms incorporated in the contract of employment because of an award or enterprise agreement; and any terms implied by common law or incorporated because of statutory entitlements. As well as the legal or contractual terms of employment, "terms and conditions" for the purposes of anti-discrimination law, including the DDA, cover terms and conditions as they are applied in practice, both in formal policies and in less formal practices and day.
Discrimination in terms and conditions of work is unlawful notwithstanding that the discriminatory terms may be agreed in an enterprise agreement. There is no exemption in the DDA for actions pursuant to such agreements. Some agreements, however, have the effect of an award or order of a tribunal and may be covered by the exemption provided for awards, as discussed below.
However, as indicated by HREOC's Manual on employment issues under the DDA, the terms of agreements are relevant to the determination of the inherent requirements of a job, and would also be considered in determining issues of unjustifiable hardship or reasonableness where relevant. Nor is there any general permanent exemption for discriminatory actions in accordance with an award. Actions in compliance with awards are specifically protected under the DDA only to the extent that they provide for wage modification based on a person's productive capacity, and only regarding people with a disability who would otherwise be eligible for Disability Support Pension payments.
There may also be some protection for discriminatory actions pursuant to award provisions or agreements having the force of an award under the exemptions for actions in direct compliance with any other law until 1 March and in the longer term for actions in direct compliance with laws prescribed by regulation for this purpose.
This protection, however, depends on the discriminatory action being in "direct compliance" with the award provision. On the basis of the decision of the High Court in Waters v. Public Transport Corporation regarding equivalent provisions in the Victorian Equal Opportunity Act, an action which is consistent with, or permitted by, but not directly required by, an award provision will not necessarily be covered by the concept of "direct compliance".
Other than as provided by the exemptions in DDA section 47, the DDA takes precedence over any other discriminatory provisions in awards although, again, the terms of an award will be relevant to determination of the inherent requirements of a job to which the award applies, and would be considered where relevant to determination of issues of unjustifiable hardship or reasonableness. DDA Standards could assist in ensuring that disability discrimination is avoided in formulation or variation of awards and enterprise agreements, by indicating more clearly what constitutes unlawful discrimination in this area and providing benchmarks for relevant authorities and parties.
Interested parties may wish to consider whether any more specific provision in DDA Standards regarding awards or enterprise agreements would be appropriate.
On some of these matters, the role of DDA Standards might need to be only to confirm that these issues are covered by the DDA, and to apply the general requirements of non-discrimination and reasonable adjustment as discussed earlier in this paper under "General Issues".
However, there may also be respects in which more detailed provision and clarification of the existing position would be appropriate.
Some issues are outlined below. Issue for discussion : Should DDA Standards contain an equivalent exemption to that contained in the existing DDA provisions regarding productivity based wage modification? The existing provisions of the DDA include an exemption regarding a different rate of payment for a person with a disability, where this is in compliance with an award provision, and where the person would otherwise be eligible for Disability Support Pension payments.
This exemption does not apply to reduced wage rates for people with a disability more generally, or reductions other than in compliance with award provisions for wage modification based on a person's productive capacity.
If DDA Standards are to reproduce substantially the same level of rights and obligations as the existing provisions either generally, for the reasons discussed earlier in this paper under "General Issues", or specifically in relation to this issue, because of a desire to maintain the system of wage modification based on a person's productive capacity in order to increase work opportunities for persons eligible for DSP payments despite an element of discrimination which may be contained in this system an equivalent limitation or exception may need to be specified.
DDA Standards could provide the same exemption as the existing provision; or a broader exemption e. Without some such exception, it could be argued persuasively that to subject a person to productivity assessment and wage reduction because of his or her disability may be experienced as a detriment in itself even where the productivity assessment, and payment based on it, accurately and reasonably reflects the person's productivity.
Such a detriment because of disability would constitute discrimination, if workers without a disability are not subject to equivalent productivity assessment and wage modification. An employer is under a duty to make reasonable adjustments for a job applicant or employee with a disability if the following conditions apply:. Where the employer is under the duty, they must take reasonable steps, in all the circumstances of the case, to prevent the person with disabilities from suffering the disadvantage.
Examples of adjustments your employer or prospective employer should consider, in consultation with you, include:. Deciding on when an adjustment is a reasonable one depends on the circumstances. What is reasonable in one situation may not be reasonable in others. The aim of the duty is to allow people with disabilities to get work, stay in work or return to work. An important consideration is whether a proposed adjustment will help achieve that goal but there are other factors that may need to be taken into account too.
You can play an active role in discussing these arrangements with your employer. You might also want to encourage your employer to speak to someone with expertise in giving work-related help for people with disabilities, such as an occupational health adviser. You may want to make sure your employer is aware of the Access to Work programme and other employment support schemes.
Through these programmes, employers can get advice on suitable adjustments and possibly financial help towards the cost of the adjustments. The Equality Commission for Northern Ireland gives advice if you feel you may have been discriminated against at work or in the provision of goods, facilities or services. It can also help if you think you have been discriminated against and want to lodge a claim at an Industrial Tribunal employment cases or County Court goods, facilities and services cases.
It also gives free advice and guidance to employers and service providers on recommended good practice under disability discrimination law. If the cost of an accommodation threatens the financial viability of the organization—whether because the company is so small or the cost is so large—it's probably an undue hardship and not required.
For most employers, that makes them reasonable and easy to implement. The ADA also has a strict confidentiality requirement. Employers must keep medical information related to an employee's disability and medical history private. Medical records and other documents containing information about a disability must be stored in a secure medical file separate from the personnel file.
Employers also cannot disclose that an employee has requested or is receiving a reasonable accommodation. The ADA does allow disclosure of a disability in certain circumstances, however. An employer may disclose confidential medical information under the following circumstances:. In some cases, though, an employee's voluntary disclosure of a disability is not considered confidential under the ADA. This might happen when an employee tells an employer about a disability without prompting or in response to very general inquiries such as "How's it going?
For example, in one case, an employee was a no-show to work and his boss emailed him saying "We need to know what is going on. Because the disclosure was not in response to a targeted inquiry about his medical condition or ability to do his job, the court found that the employer was not required to keep the employee's medical condition confidential. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. If an employee has a physical or mental impairment that substantially limits a major life activity, he or she is protected.
Public sector organisations have an extra legal responsibility to stop discrimination, harassment and victimisation, under the public sector equality duty. Find out about the different types of disability discrimination. Read examples of different types of discrimination. The Equality Act also protects people who are no longer disabled but had a disability in the past.
In some cases, it may not be against the law for an employer to make a decision based on someone's disability. But the law in this area can be complex.
It's a good idea for employers to get legal advice first. Find out more about when an employer may make a decision based on disability. Disabled people and many people with health conditions have been disproportionately affected by the COVID pandemic. During the pandemic, employees and workers have the same rights as usual to not be discriminated against at work because of disability. By law, employers must consider this when they make any decisions related to the pandemic, for example:.
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