Equal employment opportunity for people with disabilities: how to move from the theoretical to the actual
|Equal Opportunity Practitioners in Higher
Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner
Australian National University 30 November 2001
Allow me to commence by acknowledging the traditional custodians of the land on which we meet.
I congratulate EOPHEA for organising this discussion. Although, of course, your focus is primarily on employment in the university environment, the conference program is clearly designed to address equal opportunity issues of much more general significance. I have approached my own paper in the same spirit: I hope it will be particularly relevant in your own context as equity practitioners in higher education, but I have taken the opportunity to raise issues of wider relevance.
Yesterday's discussions dealt with problems in achieving real cultural change and in achieving mainstreaming of equal opportunity issues in organisations. My topic this morning raises the issue of how to move from the theoretical to the actual in pursuing equal employment opportunity. In my remarks here I want to point very briefly to some of the evidence that such a move is needed, and then spend most of my time in discussing some strategic issues in making that move happen.
Focus on disability issues
I am speaking here principally in my capacity as acting Disability Discrimination Commissioner, and I propose to focus mainly on equity issues as they affect people with disabilities.
I know that the focus of EOPHEA and of this conference is not restricted to disability issues.
For that matter, issues for people with a disability are not restricted to disability issues, either.
Half the disability community are women, and have the same concerns as other women regarding gender based disadvantage. In fact there is evidence that women with disabilities are subjected to sexual harassment and abuse at an even greater rate than other women.
People with disabilities share the ethnic, religious and cultural diversity of the Australian community.
Disability is an inherent part of the human experience - whether acquired through illness or injury or inheritance or simply through the ageing process.
So Australia's indigenous peoples also include people with all kinds of disability. Some disabilities, for example deafness and hearing impairment, occur at a much higher rate among Aboriginal people than in the community generally.
These may be obvious facts, particularly to this audience. One reason I mention these facts is because I think in discussing diversity or equal opportunity issues there is a constant need to struggle against the temptation to treat people as if they really are conveniently divided into separate EEO categories.
On this thinking for example a woman with a disability may be seen as an inconveniently complicated phenomenon, crossing over different areas of policy or responsibility. Worse still if she has an accent like mine - instead of simply being seen as herself and as an instance of what human diversity really means.
The other reason that I have made these remarks about people with disabilities including women, non-English speaking and indigenous people and other categories of diversity, and vice versa, is to excuse myself in advance. Because I am going to concentrate on disability discrimination issues in the rest of my remarks.One reason is that - as you probably know - my own organisation, the Human Rights and Equal Opportunity Commission, is itself divided up into separate categories of responsibility. So in addition to our President we have
- a Sex Discrimination Commissioner;
- an indigenous Social Justice Commissioner and acting Race Discrimination Commissioner;
- and myself as Human Rights Commissioner and acting Disability Discrimination Commissioner.
As Human Rights Commissioner I have principal responsibility on those areas which do not have their own specific discrimination Act and Commissioner, such as age and sexuality. You may be interested in a paper I gave in Canberra earlier this month on the need for national age discrimination legislation. This paper is on our website and so I will not take up more time today detailing what is in it.Apart from the focus of my own formal responsibilities as acting Disability Discrimination Commissioner, I think disability issues provide a particularly good focus for discussing moving from the theoretical to the actual in EEO.
Some of the practical issues in achieving equal opportunity for people with disabilities are also directly relevant to equal opportunity considered on the basis of other categories.
In particular, issues of flexibility of working hours, or other flexibility in working arrangements including home based work, affect opportunity for some people with disabilities and people with disability carer responsibilities, but also clearly affect workers with family responsibilities.
From a disability and carer perspective as well as from the perspective of family responsibilities, there is still much work to be done in working out in practice these interactions between the world of work and the world of family and personal requirements. But at least at a theoretical level, disability policy has a head start to offer in dealing with these issues.
People dealing with disability issues are used to dealing with concepts like "reasonable adjustment". This concept recognises on the one hand that equal opportunity can require some positive changes in work environments or arrangements, not just a change in attitudes or a refraining from overt discrimination. On the other hand, concepts of reasonable adjustment recognise that there is a balancing process needed between the needs of the employee and the requirements of the job to be done and the needs of the organisation.
One of the limitations of a lot of discussion of discrimination on other grounds such as race and sex is that it occurs in the realm of moral imperatives rather than this more messy world of balance and compromise. Issues like the fit between work and family or carer responsibilities clearly need some attention to issues of balance if sustainable changes in this area are actually to happen in practice.
In addition to these areas where disability and other EEO categoris present similar issues, there are a host of very practical issues presented by disability which require attention and expertise over and above what is available from experience in areas like sex or racial discrimination.
We are a long way past the point where equal employment opportunity for women in higher education was the lack of female toilets - at least I hope we are. But that sort of practical barrier remains ever present for people with disabilities:
- Are the buildings accessible - not just the university's own buildings but those of other organisations where conferences or training or teaching or recruitment occurs?
- Is information accessible to people who cannot use print on paper?
- Is equipment such as communications and information technology accessible to people with physical or sensory disabilities?
These and many other practical issues will be familiar to many of you. I mention them only to emphasise that, for all the progress being made in many respects, people with disabilities still frequently encounter barriers which have the practical and the emotional impact of facilities available to "men only". Or indeed to "whites only".
The Disability Discrimination Act
I want to discuss briefly the Disability Discrimination Act and the experience of the Human Rights and Equal Opportunity Commission in administering it.
I do not mean that I am going to give a tutorial on the detailed provisions and legal effect of the D.D.A.
For people seeking this kind of information, large and increasing amounts of information on the Commission's interpretation of the DDA is available in the disability rights section of our Internet site or in other formats on request.
This includes a very substantial "frequently asked questions" on employment, which updates and expands on the advice and opinion contained in the "Employer Manual" issued back in 1994, but which also draws on case law, complaint handling and other experience since then.
I am interested in suggestions for additional issues which this information material needs to address, and in ways that we can better ensure that information is available to people who need it, and I will come back to those issues. But it would not be a good use of our time together today for me just to recite material that is already available.
History of the DDA: employment a principal focus
What I do want to discuss briefly is the history of the D.D.A., the purposes for which it was introduced, and how effectively those purposes are being achieved regarding employment in particular.
Work on the development of the DDA started in 1991 as part of a national strategy to achieve equal employment opportunity for people with disabilities. In addition to concerns for social justice in its own right, one of the clear motives for this strategy was an economic motive: to reduce unemployment and increase labour force participation by people with disabilities and reduce welfare dependency accordingly.
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:
- discriminatory attitudes or lack of awareness leading to direct discrimination
- existing rules and procedures having disadvantageous effects on people with disabilities
- physical barriers in premises and equipment
- barriers in information and communication.
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.
As the late Elizabeth Hastings pointed out as Disability Discrimination Commissioner, the aim of Australia's anti-discrimination laws is not restricted to dealing with some hundreds of complaints each year - as important as that role is. The objective is on a much larger scale of public policy: to eliminate discrimination as far as possible.
Other access issues as preconditions for EEO
The initial intention of the federal government when development of the DDA commenced was only to legislate on employment.
The Commission and disability community organisations argued that legislation covering employment by itself would have very little impact.
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.
So, even at a conference focussing on equal employment opportunity, I do not think that any apology is needed for the fact that we have applied more of our slender policy resources to large scale practical access issues in these other areas than to work focussed purely on EEO - not that we have neglected employment issues either.
Progress on accessible transport
Accessible public transport is probably the area where the largest scale practical effects of the D.D.A. have been seen so far. This is a particularly significant achievement because lack of public transport accessibility has been consistently identified for many years as one of the major barriers to equal participation by people with disabilities in economic and social life, including the crucial areas of education and employment.
Prompted by a series of complaints early in the life of the D.D.A, Transport Ministers around Australia initiated development of national standards in 1995 to set out how public transport accessibility should be achieved across Australia over time. The process towards final legal ratification of these Standards has been very protracted and is still not quite complete. Already, though, many public transport operators have been applying the draft Standards for several years, so that most public sector bus fleets for example are close to achieving the first five year target in the standards even before the Standards actually commence.
One of our great successes in the public transport area was when Melbourne's tram operators committed last year to accessibility of all new trams, and to accelerating their acquisition substantially from what they had previously planned - in return for a five year exemption protecting them form complaints. Experience indicates that businesses are frequently prepared to do more in exchange for certainty than they have been able to be compelled to do by the threat of complaints.
I will come back to the issues of certainty, standard setting and exemption based processes a little later.
Less evidence of progress on employment
I think we have to say that there is less evidence of the D.D.A. - and its State and Territory equivalents - being effective in moving toward the objective of eliminating disability discrimination in employment than there is in an area like transport.
Evaluating success in policy activities is often difficult, particularly with an activity like employment which involves tens of thousands of organisations. We do not have any comprehensive reporting regime even for larger employers on measures taken and progress achieved towards equal opportunity for people with disabilities. There is no equivalent for disability to the measures for monitoring women's equality through the Affirmative Action Agency - even with the limitations that have been noted about the effectiveness of those measures.
As the Disability Discrimination Act approaches its second decade and as we are now 20 years on from the International Year for people with disabilities, HREOC is keen to see a better basis established if possible for evaluation of success or otherwise in moving towards the elimination of discrimination. We are talking with the Federal Office of Disability and other organisations about what might be done to establish meaningful benchmarks - to determine what base lines we are coming from and where we might get to. We would very much welcome any input from equal opportunity practitioners on approaches to benchmarking and monitoring progress towards equality.
Such evidence as we have seen, though, on the employment position of people with disabilities is not encouraging:
- Overall employment rates for people with a disability do not appear to have been improved markedly since the passage of the DDA. We still see frequent reference to people with disabilities having ten times the average unemployment rate. I would like to see more precise figures on this issue being produced as a standard part of the Australian Bureau of Statistics regular statistics on employment, but the figures which are quoted are cause for concern.
- Representation of people with a disability within Commonwealth employment has in fact decreased over the last decade, as indicated by the Australian National Audit Office in its report Equity in Employment in the Australian Public Service. While the APS may not be typical of all employment in Australia, that is not a very positive sign.
I would be interested to know whether the higher education sector has been performing better than this.
Employment complaint experience under the DDA
This depressing picture on overall success in improving the employment position of people with disabilities may seem hard to reconcile with the many success stories available though HREOC's web site of complaints successfully resolved by conciliation, and the smaller but significant number of cases of disability discrimination in employment redressed through the courts or through HREOC's former tribunal function.
From the outset employment complaints have been the largest proportion of DDA complaints. But in most cases employment discrimination complaints have simply provided individual remedies and it is harder to see broader impacts in achieving the elimination of discrimination.Decisions on complaints have emphasised some important principles.
In particular, a number of decisions have given effect to the important point that the principle of reasonable adjustment is a central part of disability discrimination law, even though the D.D.A. 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.
Unsuccessful attempt to provide more certainty through standards
Open ended discrimination provisions such as those under the DDA and State/Territory equivalents provide a high degree of flexibility in considering the individual circumstances of cases. However they also carry a high degree of uncertainty and lack of specification of rights and obligations.
Similarly to public transport issues, there has been a desire for more certainty on employment discrimination issues than is provided by the general and open ended non-discrimination provisions of the D.D.A.
As is the case for public transport, the D.D.A. provides for standards on employment discrimination to be made, to make rights and obligations under the DDA clearer and easier to understand, enforce and comply with.
Over three years of effort - by HREOC, by other areas of government, and by industry, disability community and trade union representatives - was dedicated to development of draft disability standards on employment, from 1995 to 1999.
The major difficulty which stalled standards development on employment was this. All participants agreed that it was too difficult to identify and agree on prescriptive standards setting out practical rights and obligations in detail. But the non-prescriptive, principle based draft standards which were prepared as a result were then criticised by many parties for failing to provide detailed and definite answers to questions about rights and obligations in particular employment situations or for particular disability issues.
As I have already noted, the Commission has extensive guidance material available on its internet site as "frequently asked questions" on employment. This material occupies much the same intellectual territory as the non-prescriptive draft standards. In fact it is largely based on the draft standards together with material from decided cases and conciliated complaints. It does not give definite solutions for particular situations but sets out principles to apply.
Employer representatives have asked for the description of this material to be changed to "guidelines" or "advisory notes" to make its status clearer.
We will be seeking confirmation shortly from the Office of Regulation Review that, like HREOC's Pregnancy Guidelines, this material does not represent new regulation but only explains the effect of existing regulation and so does not need to undergo the demanding and lengthy Regulation Impact Statement process before it can be issued in its re-badged form as guidelines.
Possible uses of temporary exemptions mechanism
It is clearly worth looking at ways to gain a higher profile for the information and advice that HREOC has available on disability and employment issues. But it has to be recognised that guidelines are not a complete substitute for Disability Standards as they do not deliver any additional legal certainty for parties concerned. The Federal Court is under no obligation to give any weight to Commission guidelines and is free to form its own judgment.
Also, whether it is issued in its present question and answer form, or as guidelines, or as standards, this material is closer to the "theoretical" end of the spectrum than the "actual" or practical.
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.
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.
In her 1997 "Foundations" paper the late Elizabeth Hastings, then Disability Discrimination Commissioner, emphasised the need for other agencies rather than only human rights and anti-discrimination specialist agencies to do their share of work in achieving a non-discriminatory world:
"A human rights agency in the position of the Human Rights and Equal Opportunity Commission has neither the expertise nor the authority, nor sufficient personnel, to regulate everything itself. As far as possible the aim should be to have access and equality built in to the ordinary way of doing things rather than being an additional set of requirements subsequently imposed from the margins."
We have not as yet had any applications for exemption from the legislation based on the proposition that an industry or organisation's own complaints system and policies should be allowed to operate in place of the process of complaints to HREOC and to the Federal Court.
There could be good grounds to grant such an application and allow this approach a temporary and reviewable opportunity to prove itself, so long as it could be demonstrated that such a system showed reasonable prospects for achieving better results in advancing the objects of the legislation.
Employers might consider applying for exemption, for example, on condition that they have and apply their own effective anti-discrimination policies and procedures, whether voluntary (in the case of private employers) or required by other legislation (in the case of some government employers).
Of course, any exemption application made would have to be considered on its merits and it would be wrong to appear to give any guarantees in advance. Also, such applications would have to go through the Commission's public process, which requires their publication on our website, and the seeking of submissions on whether or not they should be granted. I simply seek to leave these issues with you for consideration, because I think that we could be doing better co-operatively than we have done so far.
Practical advice and information
The other approach I want to mention today moves away from emphasis on legal rights and responsibilities and perhaps has more to say on actual or practical realisation of equal opportunity.
The great limitation of standards or legislative approaches in relation to employment is the difficulty of dealing with the vast variety of disability issues and employment issues that arise. Practical examples of where a problem has been successfully dealt with in practice may be a much more important part in achieving change to ensure equal opportunity for people with a disability than official exhortation about how beneficial, and how compulsory, change is.
One of the great reported success stories of the United States experience on employment and disability is the Job Accommodation Network, which provides human advice and computer based resources to share experience in making adjustments to achieve equal opportunity for people with a disability. We do not have anything of that scale in Australia - a small number of non-government resources struggle to meet requests for information and many employers struggle to find any useful sources of advice or information at all.
We have started to discuss needs and possibilities in this area within government. I would very much welcome input from within the higher education sector both on what needs you see for this kind of practical information resource, and on resources you are aware of which we could seek to make more widely known.
It will be obvious to you that I have not provided here a step by step map for moving from the theoretical to the actual in the quest for equal opportunity in employment. But I hope that the approaches I have outlined offer some possibilities for you to pursue. I wish you well in your further discussions at this conference and I look forward to receiving information and questions you may wish to provide, whether today or by email to my office.