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Clark McNamara Lawyers

12-09-05

Issues under the Disability Discrimination Act 1992

Under Australian Law it is illegal to discriminate against a person because of disability. Various Commonwealth and State legislation cover discrimination based on disability.

The most expansive source of legislation is the Commonwealth Disability Discrimination Act 1992 ("DDA"). The DDA addresses both direct and indirect forms of disability discrimination arising in the workplace, education, access to premises and the provision of goods, services and facilities.

Under the DDA where an act that could constitute discrimination is done for two or more reasons but at least one of the reasons is because of a person's disability then this shall be a ground for discrimination, notwithstanding the other factors.

Discrimination can generally be categorised as where a person with a disability is treated differently to a person without the disability. While the concept of discrimination is well known to employers there are numerous challenges and considerations that arise in adhering to and applying law under the DDA.

For example it is not always immediately apparent when drawing the line between what constitutes a "disability" from the outward actions and behaviour that may stem from the disability.

In such cases where people suffer from mental conditions, behavioural problems, depression, or drug addictions there is a need to identify wether a person's actions are caused and connected to the underlying "disability".

In the workplace there is also the balancing of act of assessing if an individual is fundamentally capable of doing their work. It is important for employers to know what there responsibilities are and act with equality between employees.

Definition of Disability

Under clause 4(1) of the DDA, disability is defined as follows:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

and includes a disability that:

(h)

(i)

(j)

(k)

While the DDA attempts to provide a concise enumerated list it becomes apparent that not all definitions are capable of precise meaning. There has been much academic and judicial discussion in relation to paragraphs (f) and (g), namely how an individual's learning, perception and reactions may be an extension to an underlying disability.

In the case of Purvis v New South Wales (Department of Education & Training) [2003] HCA 62 (Purvis) the High Court considered the definition of paragraph (g) in relation to a school boy expelled following a history of violent and disruptive behaviour.

It was shown that the student's behavioural problems resulted from brain damage sustained as a baby. The High Court found that the scope of paragraph (g) was sufficient to cover the resultant "disturbed behaviour". What was important was to establish a nexus between the physical brain trauma and the outward aggressive acts displayed by the child as a manifestation of the disability.

At paragraph 80 Kirby and McHugh JJ stated:

"It is his inability to control his behaviour, rather than the underlying disorder, that inhibits his ability to function in the same way as a non-disabled person in areas covered by the Act, and gives rise to the potential for adverse treatment. To interpret the definition of "disability" as referring only to the underlying disorder undermines the utility of the discrimination prohibition in the case of hidden impairment."

It is interesting to note that while all members of the High Court who addressed this issue supported this view, it was contrary to the determination made by the Full Federal Court who considered the child's behaviour was "a consequence of the disability rather than any part of the disability". Actions that are related to a disability and those deemed as a separate consequence will depend on the facts in each case and can be a very difficult distinction to make.

What can be understood from this case is that a disability is not necessarily just the known or obvious physical impairment but may include secondary or related symptoms that manifest in physical or psychological form and affect the behaviour of an individual. Where it can be shown that actions result from the underlying disability this will satisfy the definition of disability under the DDA.

Discrimination - The Comparison Test

In determining what constitutes a discriminatory act a Court is required to look at the actions in light of how another individual without the disability would be treated in materially similar circumstances. Section 5 of the Act states:

(1) For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

In assessing the acts complained of by the aggrieved person the Court makes a theoretical comparison to determine whether the same oppressive actions would have been undertaken to a person without the disability. This is commonly referred to as a "Comparator". Where it is determined a party would have acted differently in the Comparator example to the detriment of the aggrieved person this will constitute discrimination.

Controversy has surfaced in the application of the Comparator as Courts wrestle with what constitutes circumstances that are the same or are not materially different in different factual scenarios.

In Purvis the Human Rights and Equal Opportunity Commission expressed the view that the appropriate Comparator would be a child in the same year without the disability or the resulting behavioural problems.

Both the Full Federal Court and High Courts rejected this approach in their decisions. The view expressed by the Full Federal Court was that the Comparator did not sufficiently paint enough detail to constitute circumstances that were essentially the same but for the disability.

The comparator was between a child with a disability displaying violent conduct and another child of the same age at the same school with no characteristics of violence or misbehaviour. The Full Federal Court noted the objectives of the Act were to eliminate discrimination on the grounds of a disability. Without imputing some characteristics of the child's behaviour in the Comparator, the comparison would become inadequate to satisfy the main objectives to determine whether the discrimination was as a result of the disability.

In paragraph 11 of the High Court judgement Gleeson expressed this position as follows:

"In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence."

Does Drug Addiction qualify as a Disability?

Under the DDA there is no specific exception addressing addiction to prohibited substances as a ground on which discrimination may be justified.

However in New South Wales an amendment made to the Anti - Discrimination Act 1977 (NSW) in 2002 did address this issue. Section 49(PA) of that Act states that it is not unlawful to discriminate where the ground for disability relates to a person's addiction to a prohibited drug and the person is actually addicted to the drug at the time of the discrimination.

In 2003 a draft Bill was put before the Senate which purported to amend the DDA to provide a similar provision into the Commonwealth legislation. The Bill further provided it would not be lawful to discriminate where the use of drug was authorised by law or the person was undergoing a program, or receiving services, to treat the addiction to the drug.

A Senate inquiry into the Bill made several recommendations, namely that in the form submitted it should not be passed. Ultimately the Bill was defeated, and the issue at law has never been fully reconciled at a Commonwealth level.

The impetus for the Draft Bill and the state legislation stemmed from the case of Marsden v Human Rights and Equal Opportunity Commission and Coffs Harbour and District Ex-Servicemen's and Women's Memorial Club Limited [2000] FCA 1619 (Marsden's Case).

In Marsden's Case a member of an Ex-Servicemen's Leagues Club was revoked membership after a number of incidents of unruly behaviour in the Club. The behaviour was a result from participation in a methadone program entered to combat heroine addiction.

At first instance the Disability Discrimination Commissioner found the discrimination was a result of the behaviour and not resulting from the drug dependency.

On appeal the Federal Court found the Commissioner had erred in its legal findings in a number of areas. The Commissioner made assumptions that drug addiction did not constitute a "disability" without addressing the definitions under the DDA, and failed to consider whether the Club had treated Mr Marsden less favourably than another individual without the disability in the same circumstances.

While the Court did not make a finding on the issue of drug addiction as disability, it has left the issue open for speculation. In the parliamentary publication (Bills Digest No.84; 03/04) discussing the DDA Amendment Bill at paragraph 8 it was noted:

"it is fair to say that the reasons of the Federal Court open the way for a finding that opioid dependency constitutes a disability under the DDA and are consistent with such a finding".

Exceptions for Discrimination?

Pursuant to s15(4) of the DDA it is not unlawful to discriminate if a person will be unable to carry out the inherent requirements of the employment or would require service of facilities that are not required by persons without the disability and which would impose an unjustifiable hardship on the employer in the provision of those facilities.

As defined by s11 what constitutes "unjustifiable hardship" takes into account a number of considerations including:

the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned
the effect of the disability of a person concerned
the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship

The issue of "inherit requirements" was one key issue looked at in Wratt and Kalgoorlie Consolidated Gold Mines Pty Ltd (U2005/1176) before the Industrial Relations Commission. The case concerned a claim for harsh, unjust and unreasonable termination after an employee suffered an injury at work.

The facts of the case were that Ms Wratt was employed as truck driver. She was unable to continue those duties due to a back and neck injury that apparently were the result of accident whilst driving the truck. Unable to work as a truckdriver she was transferred to the blast crew.

In the submissions before the Commission CGM claimed that Ms Wratt had knowledge of a pre-existing problem with her back. They claimed she had deliberately mislead the company when stating "no" in her medical assessment test to a question "Have you had back/neck trouble of any kind?". Ms Wratt disputed this, claiming that she only found out about the injuries after x-rays conducted by the CGM appointed medical examiner she further claimed she had not had the opportunity to clarify her position.

From the evidence it was shown Ms Wratt had previously had x-rays on her back and neck resulting from pain prior to her employment with CGM. There were credibility gaps in the explanations given by Ms Wratt and the Commission found that there was evidence to support she had knowledge of existing medical conditions to her neck and back.

However the Commission found it was not necessary to consider the disclosure and natural justice issues surrounding the medical assessment as the termination was justified on the basis Ms. Wratt was unable to perform the job she was employed to do. It was demonstrated the transfer to the blast crew was "temporary" pending Ms Wratt's rehabilitation to return to work as a truck driver. Accordingly no claim could be made on the ground her terms of employment had been changed. In any event there were considerable questions whether she could continue to function in that role either.

An interesting question this case raises for both employers and employees alike is the issue of disclosing very minor or seemingly trivial problems given the potential affects on an individual's employment where "niggles" blow out to become disabilities.

It is important that any employer is very specific in the personal information they are seeking prior to employment without falling foul of privacy laws. It is a delicate balance. While the case did not turn on the scope of the questions in the medical assessment it can be easily seen how this could be a factor. Given the question in case was specific to back/ neck injuries but broad enough to cover injuries of "any kind" it was extremely difficult for Ms. Wratt to claim ignorance or innocence in the face of the evidence and CPM had a strong case to argue.

Summary

These are a few select issues to consider when dealing with disability discrimination. What constitutes a "disability" is not always clear cut. Equally where resulting behaviour falls under the definition of "disability" exclusionary actions are not necessarily discriminatory. The Courts have taken a narrow view of what "like circumstances" are, so that in many cases inappropriate conduct whether resulting from a disability or not may justify a reason to exclude without such actions being discriminatory.