Impairment
ELEMENT 1: Type of Impairment Discrimination: Direct or Indirect
Direct Discrimination: s5(1) DDA (Cth):
; A person discriminates against another person on the ground of a disability if:
a) Because of the aggrieved person's disability;
b) The discriminator treats, or proposes to treat the, aggrieved person less favorably
than;
c) In circumstances that are the same, or are not materially different;
d) The discriminator treats, or would treat, a person without the disability.
Indirect Discrimination: s6 DDA (Cth):
; A person discriminates against another person on the ground of a disability:
; If the discriminator requires the aggrieved person to comply with a requirement or
condition:
a) With which a substantially higher proportion of persons without the disability
comply or are able to comply; and
b) Which is not reasonable having regard to the circumstances of the case; and
c) With which the aggrieved person does not or is not able to comply. ELEMENT 2: Define Impairment
; ‘Impairment’, in relation to a person, means: Schedule ADA (Qld); s4 DDA (Cth):
a) The total loss or partial loss of the person’s bodily functions, including the loss of
a part of the person’s body; or
b) The malfunction, malformation or disfigurement of a part of the person’s body; or
c) A condition or malfunction that results in the person learning more slowly than a
person without the condition or malfunction; or
d) A condition, illness or disease that impairs a person’s thought processes,
perception of reality, emotions or judgment or that results in disturbed behavior;
or
e) The presence in the body of organisms capable of causing illness or disease; or
f) Reliance on a guide dog, wheelchair or other remedial device;
Whether or not arising from an illness, disease or injury or from a condition
subsisting at birth, and includes an impairment that:
g) Presently exists; or
h) Previously existed but no longer exists.
; s4 DDA (Cth) also includes disabilities which may exist in the future.
; These definitions are exhaustive.
ELEMENT 3: Area of Discrimination
; s15 DDA (Cth): Employment.
; s16 DDA (Cth): Against commission agents.
; s17 DDA (Cth): Discrimination against contract workers. ; s18 DDA (Cth): Partnerships.
; s19 DDA (Cth): Qualifying bodies.
; s20 DDA (Cth): Registered organizations.
; s21 DDA (Cth): Employment agencies.
; s22 DDA (Cth): Education.
; s23 DDA (Cth): Access to premises.
; s24 DDA (Cth): Goods, services and facilities. ; s25 DDA (Cth): Accommodation.
; s26 DDA (Cth): Land.
; s27 DDA (Cth): Clubs and incorporated associations. ; s28 DDA (Cth): Sport.
; s29 DDA (Cth): Administration of Commonwealth laws and programs. ; s30 DDA (Cth): Requests for information.
; s31 DDA (Cth): Disability standards.
; s32 DDA (Cth): Unlawful to contravene disability standards.
ELEMENT 4: Employer Decisions
; Employer decisions must be based on an actual assessment against the job criteria,
not statistical probabilities or assumptions.
; Madafferi v City of Northcote:
; An employer cant base an assessment of a person’s health risk on statistical probabilities.
; This information is a generalisation only, and not based on the person in question.
; A doctor, on behalf of an employer, decided, based on statistics that the complainant would get
arthritis and would be, therefore, unable to do the job.
; He provided a certificate to the employer to this effect.
; The complainant was not employed.
; Held: You cant rely on these conclusions, you must assess the individual person, an employer cant
rely just on a doctors certificate, they must assess all of the criteria for the job.
; McCarthy v Transperth:
; Doctor assumed that a pregnant woman would be no good as driver because she would not fit
behind the wheel in the future.
; Held: Discrimination.
Obesity:
; Obesity alone does not fall within the definition of the section, it must accompany a
listed condition.
; Cox v Public Transport Corporation:
; Obesity in itself is not a disability.
; Held: Obesity does not fall within the section, so the discrimination was not unlawful.
Characteristics of Impairment:
; Impairment includes the characteristics of impairment, eg. takes more sick leave: s8(a)
ADA (Qld).
; Mooney v Commissioner of Police, NSW Police Service:
; Taking more sick leave is a characteristic of an impairment.
; Complainant was forced to produce doctors certificates for less than 2 days off, and was told to
improve attendance.
; He took one month off in sick leave that year.
; He then resigned, constructive dismissal, forced into a position where he had no where to go but
resign.
; Held: Discrimination based on impairment.
Manifestations of the Impairment Such as Behavior:
; Treats, or proposes to treat, the person with the attribute less favorably than, in
circumstances that are the same, or are not materially different, someone without that
attribute: s10(1) ADA (Qld); s5(1) DDA (Cth).
; Purvis obo Hoggan v NSW (Department of Education and Training):
; Purvis had encephalitis as a baby, which left him with an intellectual impairment, poor vision and
epilepsy.
; He had a damaged frontal lobe, which deals with behavior.
; He tended rock, swear and was violent.
; He was in the care of foster parents, who attempted to enroll him in a normal school. ; The school resisted, but agreed if he was provided with a teacher’s aide.
; He was then suspended for being violent and swearing, and he kicked the teacher’s aide.
; 7 months later, he was expelled.
; The principle argued that of his 1000 students, he spent one day a week on this guy. ; There was a special school near by.
; The foster parents claimed discrimination based on disturbed behavior.
; Initially held: Discrimination, had an impairment and was treated less favorably than someone
without the impairment.
; On appeal, the Federal judge distinguished between a characteristic and behavior, saying that he
was treated the same as anyone else of that behavior, therefore, no discrimination. ; The High Court upheld this decision.
; There were four issues before the High Court:
1) Does the definition of disability include manifestations of the disability, such as
bad behavior?
2) Who do you compare the Complainant with?
3) What does discrimination ‘because of’ the disability mean within the Acts?
4) Is there a positive obligation on schools, employers, etc. to provide reasonable
accommodation for people with disabilities?
; The majority held that:
1) The court needs to compare circumstances that are the same or similar, including
the Complainant’s behavior, the school’s liability and the criminal law;
2) Need to compare against someone with the same behavior but no disability; 3) The principal discriminated because of the boy’s behavior, and not because of his
disability;
4) There is no positive obligation to accommodate.
; Waters v Public Transport Corporation:
; Public Transport Corp in Victoria changed the services so that some trams would be driver only,
meaning that passengers would have to buy a ticket from a newsagency, and scratch of their
journey as they were made.
; Nine disabled people claimed indirect discrimination based on the fact that they could not use the
tickets properly and that the lack of conductors meant that there was no one to help them to their
seats.
; Held: It is not the role of the Equal Opportunity Board to determine minimum standards of service,
no discrimination.
ELEMENT 5: Other Information
Disability Harrassment:
; It is unlawful to harass a person or their associate on the basis of their disability, in
the areas of employment, education and provision of goods and services: ss35-40
DDA (Cth).
; ‘Associate’ includes spouse, de facto, relative, carer, someone in a business, sporting
or recreational relationship with the Complainant: s4 DDA (Cth).
Action Plans:
; State and Commonwealth government departments and educational authorities can
prepare and implement action plans covering goals, targets, and non-discriminatory
practices: Part 3 DDA (Cth).
Minister’s Standards:
; The relevant Federal Minister can make disability standards: s31 DDA (Cth).
; Once tabled in Parliament, standards are enforceable under s32 DDA (Cth).
; Public transport standards were made in 2002.
Criminal Offence:
; Separation from guide dog: s225 ADA (Qld) (Proof beyond reasonable doubt).
ELEMENT 6: Impairment Exemptions
Public Health Exemption: s107 ADA (Qld); s48 DDA (Cth) (infectious diseases).
; Henderson v City of Whittlesea:
; Man with skin disease wore full clothing in the public pool.
; He was told to leave.
; People who use public swimming pools must wear bather, because clothing carried dirt.
; Held: Not unreasonable to exclude, public health exemption applies.
; Taikato v Western Sydney Area Health Service:
; Woman with hepatitis wanted IVF treatment.
; Risk to hospital staff.
; Held: Not unreasonable to exclude, public health exemption applies.
Existing Statutory Provisions: s106 ADA (Qld); s47 DDA (Cth) (prescribed laws only).
; L v Minister for Education Queensland:
; Retarded girl in normal school with a teachers aide.
; The school recommended a transfer to a special school.
; The Regional director suspended the girl, relying on the Educational Act 1989, which allowed
suspension on the grounds of conduct contrary to the benefit of the school. ; They tried the public health exemption, failed.
; Tried the special services required exemption, failed.
; However, they were successful in claiming the pre-existing statutory provision exemption.
Inherent Requirements of the Job: s25 ADA (Qld); s15(4) DDA (Cth).
; Flannery v O’Sullivan:
; Needed perfect vision to get into the police force.
; Applicant was short sighted.
; Police claimed genuine occupational requirement.
; Applicant supplied evidence that the police force was full of officers with glasses.
; Police said that if he gets hit in the face, his glasses would injure his eye.
; Held: There was nothing that he couldn’t do with glasses, no exemption.
; X v Commonwealth:
; X was in the army reserve, and applied to transfer to the regular army.
; He signed a document that said that if he was found to have HIV or hepatitis, he would be
discharged.
; He was tested and found to be positive, and was consequently discharged from the reserves.
; He had no symptoms.
; There was a provision under the DDA allowing the army to ask for an exemption, but they hadn’t.
; Held: Discrimination, but a need to bleed cleanly was an inherent requirement of the job, the
exemption applies.
; Risk of transmission during wounding was too high.
; Appealed to High Court, held: Army has a duty of care to the other soldiers, it is an inherent
requirement that you don’t pose a risk to other soldiers.
; Gummow and Hayne JJ in X v Commonwealth said that you apply the following to
the facts:
1) Look at the terms, conditions, circumstances of the employment, the skills and
tasks required, including issues such as risk, safety to others, duty of care of the
employer, etc.
2) Identify which of these are inherent in the job.
3) Is the employee unable to carry out these inherent requirements because of the
disability?
4) Can the employer make a reasonable adjustment without undue hardship to deal
with this inability?
Reasonable Accommodation in Work Area:
; An employer can affix reasonable terms and conditions to an employment contract, if
a worker has a restricted capacity: s34 ADA (Qld).
; An employer can discriminate if special services, etc. would be required, and this
would impose an unjustifiable hardship on the employer: s35 ADA (Qld); s15(4)(b)
DDA (Cth).
; An employer can discriminate if the circumstances of impairment would impose
unjustifiable hardship: s36 ADA (Qld).
; Note: unjustifiable hardship only applies to impairment.
In Education: s44 ADA (Qld); s22(4) DDA (Cth).
; It is not unlawful for an educational authority to discriminate on the basis of
impairment where the person would require special services or facilities which would
impose an unjustifiable hardship.
; L v Minister for Education Queensland:
; Retarded girl in normal school with a teachers aide.
; The school recommended a transfer to a special school.
; Purvis obo Hoggan v NSW (Department of Education and Training):
; Purvis had encephalitis as a baby, which left him with an intellectual impairment,
poor vision and epilepsy.
; He had a damaged frontal lobe, which deals with behavior.
; He tended rock, swear and was violent.
; Clarke v Catholic Education Office.
In Goods and Services: s51 ADA (Qld).
; It is not unlawful for a person to discriminate on the basis of impairment where the
person would require special services or facilities which would impose an
unjustifiable hardship.
; Cocks v State of Queensland:
; Wheelchair guy, complained because front entrance to convention centre did not
have wheel chair access.
; However, it was held that providing such access would not impose unjustifiable
hardship, as the government has plenty of money.
; Cooper v Coffs Harbour City Council.