Disability discrimination and reasonable adjustments 

The Disability Discrimination Act 1992 (Cth) works quite differently from the schemes that fund disability supports: it creates rights against other people rather than entitlements against government, and it applies whether or not the person is a participant in any scheme¹. The prior question in a discrimination problem is which of the Act's four routes to discrimination is being run, because they have different elements and the burden of proof falls differently on each.

What counts as a disability

The definition in s 4 is deliberately wide. It covers total or partial loss of bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing, or capable of causing, disease or illness; the malfunction, malformation or disfigurement of a part of the body; a disorder or malfunction resulting in the person learning differently; and a disorder, illness or disease affecting thought processes, perception of reality, emotions or judgment, or resulting in disturbed behaviour.

The definition also reaches beyond the present. It includes a disability that presently exists, and extends to disabilities that previously existed, may exist in the future, or are imputed to a person. A person refused a service because of a condition they are wrongly believed to have is within the Act.

Section 7 extends the Act to associates: it applies to a person who has an associate with a disability in the same way as it applies to a person with the disability. An employer who discriminates against an employee because of the disability of the employee's child is caught.

Four routes, not two

Sections 5 and 6 each contain two routes, and precision about which is being run is most of a good answer.

Section 5(1) — direct discrimination. The discriminator treats, or proposes to treat, the aggrieved person "less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different", because of the disability.

Section 5(2) — direct discrimination by failure to adjust. The discriminator does not make, or proposes not to make, reasonable adjustments for the person, and that failure has or would have the effect that the person is treated less favourably, because of the disability, than a person without the disability in circumstances that are not materially different.

Section 6(1) — indirect discrimination. The discriminator requires, or proposes to require, compliance with a requirement or condition; because of the disability the person does not or cannot comply; and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

Section 6(2) — indirect discrimination by failure to adjust. The same structure, but the person would be able to comply if reasonable adjustments were made, and the discriminator does not make them; and that failure has, or is likely to have, the effect of disadvantaging persons with the disability.

The comparator trap, and how section 5(3) closes it

The most common way a direct discrimination argument is defeated is by the respondent saying that a person requiring adjustments is not in circumstances that are relevantly comparable. Section 5(3) forecloses that: "circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments".

The need for an adjustment therefore cannot be moved into the comparison to make the comparison fail. An answer that constructs a comparator who also needs adjustments has misapplied the section.

Where the burden reverses

Two provisions put the onus on the respondent, and both are easy to miss.

For indirect discrimination, s 6(3) provides that s 6(1) and (2) do not apply if the requirement or condition is reasonable having regard to the circumstances of the case. Section 6(4) then places the burden of proving reasonableness on the person who requires, or proposes to require, compliance. Reasonableness is thus an answer the respondent must establish, not an element the applicant must negative.

Unjustifiable hardship operates similarly. Section 11(1) requires all relevant circumstances to be taken into account in determining whether a hardship would be unjustifiable, including the nature of the benefit or detriment likely to accrue to or be suffered by any person concerned; the effect of the disability of any person concerned; the financial circumstances of, and estimated expenditure required by, the person claiming hardship; the availability of financial and other assistance to that person; and any relevant action plans given to the Commission under s 64. Section 11(2) places the burden of proving unjustifiable hardship on the person claiming it.

Applying this in a problem question

1. Establish the disability under s 4, and check whether the past, future or imputed limbs are needed rather than the present one.
2. Ask whether s 7 is engaged, because the aggrieved person is an associate rather than the person with the disability.
3. Name the route: s 5(1), s 5(2), s 6(1) or s 6(2). Run more than one in the alternative where the facts support it.
4. For a s 5 route, construct the comparator, then apply s 5(3) to stop the need for adjustments being built into it.
5. For a s 6 route, identify the requirement or condition precisely, then put reasonableness on the respondent under s 6(3) and (4).
6. Treat unjustifiable hardship as the respondent's case to prove under s 11(2), and work through the s 11(1) factors rather than asserting cost alone.

Self-check

• Have I named which of the four routes I am running, rather than pleading discrimination generally?
• Have I applied s 5(3) to the comparator?
• Have I put reasonableness and unjustifiable hardship on the respondent?
• Have I considered whether a State or Territory anti-discrimination Act also applies, and not assumed its test matches?