Education to Employment Education to Employment

Discrimination law

Anti-disability discrimination law in Australia is designed to protect people with disability against being treated unfairly because of their disability and allowing them the opportunities needed to fully participate in all areas of Australian life. Here are some key points of how this relates to graduates with disabilities at work and their employers.

Here you will find information on:

What is disability discrimination?

The Commonwealth Disability Discrimination Act (1992) and corresponding state and territory laws across Australia say that disability discrimination is when a person or people with disability are treated less favourably than people without disability because of their disability. This includes protection against discrimination, harassment and victimisation of people with disability and their associates in employment and many other areas of life (see below).

Who is covered?

The anti-discrimination law defines disability very broadly and includes points that you and many others may not have thought of as a disability. The Disability Discrimination Act (1992) says that a disability includes any:

  • total or partial loss of a person's bodily or mental functions
  • total or partial loss of a part of the body
  • presence in the body of organisms causing disease or illness
  • malfunction, malformation or disfigurement of a part of a person's body
  • disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction
  • disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement, or that results in disturbed behaviour.

This definition includes these disability types and others that a person has now, has had in the past, may have in the future or are believed to have (go to 'What is disability'  for more details about specific disability types):

  • Physical
  • Intellectual
  • Mental illness
  • Sensory
  • Chronic medical conditions
  • Learning disabilities
  • Physical disfigurement

Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability.

What areas are covered?

Anti-discrimination rights and obligations apply to all areas of employment, including:

  • recruitment;
  • terms and conditions of employment;
  • promotional opportunities and access to professional development;
  • disciplinary action; and
  • termination.

Anti-discrimination legislation also applies to education settings, including schools and post school training providers. The same types of responsibilities apply.

What are anti-discrimination rights and responsibilities at work?

In summary

  • Employees with disability (including applicants) are protected by anti-disability discrimination law against being excluded from employment which they have the ability to perform safely.
  • The law also gives the right to an employee with disability to have reasonable changes called 'workplace adjustments' made to the way they work and/or the workplace. These changes are to allow them to perform their core duties, called 'inherent requirements', and to do so safely.
  • An employer must by law offer and implement any reasonable workplace changes needed by a worker with disability that allows them to perform the core functions, or 'inherent requirements', of a job safely, participate in the workplace, and have equal access to opportunities for professional development, promotions and working conditions.
  • If an employer declines to make workplace adjustments they must be able to show 'unjustifiable hardship' which means an impossible disadvantage to the employer financially, in workplace relations, and/or core functions of the business.

Workplace adjustments

  • Anti-discrimination law makes it a legal responsibility of an employer to remove workplace barriers to an employee with disability being able to fulfil their duties and participate in the workplace.
  • This is to be done by making reasonable adjustments in the workplace that would enable a worker with disability to work or participate in the workplace effectively. For more information on workplace adjustments go to the section called 'Making workplace adjustments'.

Unjustifiable hardship

  • Employers who fail to make reasonable workplace adjustments will be exposed to liability for unlawful discrimination as well as missing an opportunity for using the talents of the full pool of graduates.
  • If the employer does not make reasonable workplace adjustments they must be able to demonstrate the organisation has explored all possibilities and that the adjustment would be considered unreasonable because it causes an 'unjustifiable hardship' on the employer that would be impossibly expensive; unfair to other workers; and/or cause huge disruption to the core function of the organisation. 
  • For further explanation of 'unjustifiable hardship' see the Australian Human Rights Commission website.

Inherent requirements

  • Anti-discrimination law also says that the decision of whether an applicant or employee is able to fulfil a position must only be made based on whether the person can do the 'inherent requirements' of the job (with workplace adjustments, if required).
  • 'Inherent requirements' are the core duties of a job that are necessary to perform the primary function of the job and to do so safely. There are always duties in a job that are not essential and these are to be excluded when considering whether a person with disability can perform a job.
  • For further explanation of inherent requirements and how to determine what they are in a job, go to 'Making workplace adjustments'