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10 years of the DDA: Employment forum

(Notes for HREOC presentation)

As part of events to mark the tenth anniversary of entry into force of the Disability Discrimination Act the Human Rights and Equal Opportunity Commission is conducting a series of forums on employment discrimination issues.

We would like to discuss:

More complaints are received on employment issues than any other area under the DDA.

A high proportion of these complaints have been resolved by conciliation.

Summaries of results of complaints through conciliation, Commission determinations and court decisions are available on the Commission's web site. A selection of these are included in the publication being released for the tenth anniversary of the DDA.

These results show some good outcomes being achieved for individuals, by adjustments being made to accommodate the effect of a person's disability, or by misconceptions about the effect of disability being corrected.

Decisions on complaints have emphasised some important principles.

In particular, a number of decisions have confirmed the important point that the principle of reasonable adjustment is a central part of disability discrimination law, even though the DDA itself does not expressly set out or describe the extent of this principle. Decisions have been made about reasonable adjustment in provision of equipment and in supervision and other management issues.

Decisions have also emphasised the need for close attention to the inherent requirements of the particular job and the particular person's ability to perform those requirements, rather than acting on stereotyped assumptions. For example, complaints by colour blind people have succeeded in some cases and not in others, because of variations in the nature of the jobs concerned and the nature of the particular person's disability in different cases.

But after more than eight years of operation of the legislation there are still only a few handfuls of decisions, so the amount of useful precedent on what is and is not required is still small.

There are also many cases where it has been too late to fix damaged working relationships and it has only been possible to negotiate or order compensation for loss of income and opportunity and other damage. Compensation is obviously better than nothing for people affected by discrimination, and may give an incentive to employers to avoid discrimination in future.

The aim of the DDA, however, is to stop discrimination happening in the first place.

A major part of the initial stimulus for introduction of national disability discrimination legislation was as part of a strategy to improve employment opportunities for people with disabilities (and incidentally to reduce rates of dependence on the social security system).

National legislation on disability discrimination in employment was one of the major recommendations of the Labour and Disability Workforce Consultancy report which some of you may remember as the "Ronalds Report", among a number of other reports leading to the legislation. These reports, and the second reading debates on the Disability Discrimination Bill, indicate a range of barriers to equality of opportunity in employment intended to be addressed by the legislation, including:

Barriers addressed by the DDA arise at all stages of the employment process: in entry to employment, in opportunities for promotion and advancement, in benefits of employment, and in dismissal.

The passage and existence of legislation was not seen then and should not be seen now as an end in itself. It was and is an investment by government and the community intended to pay dividends in large scale social change towards a more equal society.

There is not much evidence however that this strategy has yet succeeded in the employment area. Rates of unemployment and underemployment among people with disabilities remain much higher than for people without a disability.

Employment is one of the areas where development of disability standards is provided for. Considerable time and effort was spent from 1995 to 1998 by the Commission, other government agencies, and representatives of employers, trade unions and people with disabilities, in attempting to develop such standards.

The draft Disability Standard is linked from the employment page in the disability rights section of the Commission's website.

It has not been possible to date to reach agreement on standards to introduce. One problem has been in finding a balance between standards which are too specific to be workable in all employment situations and standards which are too general to give much more guidance than the existing open ended discrimination provisions.

Although the draft Standards in this area did not specify outcomes (such as "when does a sign language interpreter have to be provided" or "what restrictions are permissible on using machinery if a person has epilepsy" or "what adaptive equipment should be provided for a blind person"), they would have assisted by at least making the principles clearer.

In particular the draft Standards tried to make clearer the duty to make reasonable adjustments to accommodate a person's disability as part of the duty not to discriminate. If the Disability Discrimination Act were being drafted now the Commission would certainly seek to have more explicit provision to this effect included in the legislation itself.

However, in the United States, where more prescriptive and detailed regulatory requirements have been in place for some years under the Americans with Disabilities Act, the evidence is similarly that overall employment outcomes for people with disabilities have not improved significantly.

So clearer or more specific legislative provisions do not seem to be the whole answer.

Given the slow progress we have seen towards adoption of Standards, not just in employment but in any area, the Commission has taken the view that we have to explore all available mechanisms for the same purposes. Relying solely on an individually-based and essentially private complaint investigation and conciliation process, followed by hearings in a small minority of cases has not been sufficient as a means of achieving elimination of discrimination in areas including employment and education.

In addition to the work on a possible Standard the Commission has developed a number of resources, such as the Frequently asked Questions, and identified other useful resources on our website at http://www.humanrights.gov.au/disability_rights/employment/employment.html

The DDA provides for the granting of temporary exemptions (up to 5 years). The Commission has decided that it will grant an exemption where this advances the objects of the Act. The exemption process has potential for significantly wider use than it has had so far, as a positive means of structuring movement towards elimination of disability discrimination.

This potential may be easiest to see in an area like public transport where appropriate results can be specified in very concrete terms - this many accessible buses operating by this date and so on. In employment it may be harder to specify results in detail. But what could be specified are appropriate processes, both to prevent discrimination occurring and to provide more speedy redress when it does occur.

Equal opportunity in work is not only a matter of attitudes and practice in the workplace itself. It depends on equality in the pieces that work is made up of - skills formation, accessible communications and information systems, accessible premises, accessible transport and so on.

Positive results in future employment outcomes may be found from achievements in these areas. But more direct strategies to achieve equal employment opportunity are also necessary.

The Disability Discrimination Act does not contain any explicit requirement even for larger or public sector employers to develop, implement and report on positive strategies to achieve equal opportunity for people with disabilities.

There is also a need to look at whether employers have effective and sufficiently easy access to information on how to deal with disability accommodation issues.

There is still no equivalent in Australia for example to the U.S. Job Accommodation Network advisory service, which provides practical information and advice to employers on equipment or other modifications necessary to accommodate a person's disability in the workplace, other than the efforts of agencies like the Independent Living Centres and Technical Aid to the Disabled (seriously under resourced compared to the task to be performed).

The DDA cannot provide the whole of a strategy for achieving equal employment opportunity. In the context of current welfare reform discussions, many disability organisations have called for attention to the "other side" of mutual obligation: the obligation of government and community to do all they can to remove the barriers which presently exist to people with disabilities taking advantage of opportunities and contributing more fully in the economic life of Australia.

Discussion questions