Wednesday 11 May 2011


Graeme Innes AM, Disability Discrimination Commissioner

One size does not fit all

or: "To drive a lift you have to say ‘eleven’"

Australian Network on Disability Conference
11 May 2011, Darling Harbour

Graeme Innes AM,
Disability Discrimination Commissioner and Race Discrimination Commissioner 

I acknowledge the traditional owners of the land on which we meet today, the Gadigal people of the Eora nation.

It's true of almost everything in life - clothes, relationships, jobs, etc … one size does not fit all.

And I wonder if, to make sure that every member of our community has the chance to find a job in our community, we need to accept that “one size does not fit all” in the way people find jobs.

Let's take lifts. It's best if there are various ways to drive lifts because some of us can't press buttons, some of us can't use voice activation, and some of us can't say ‘eleven’.


I've been pondering - as many of you have - how we redress the huge imbalance of people with disability who are unemployed.  It seems that, almost no matter what we do, we can't change those numbers.  So when the Australian Network on Disability (AND) asked me to talk about whether employers can positively discriminate in favour of people with disabilities, I jumped at the chance to explain some of my thoughts. 

So today I want to talk about two issues:

  1. Whether you can positively discriminate; and
  2. How you might do it.

Firstly, can you - as an employer - discriminate in favour of people with disability?  The answer is a resounding “yes”.

The Race and Sex Discrimination Acts deal with discrimination against anyone on the basis of their race or gender. They make it unlawful - with some minor exceptions - to discriminate against anyone, or to treat anyone less favourably, on the basis of their race or sex.

So a Scotsman - to use our recent example - can lodge a complaint of discrimination with the Australian Human Rights Commission, as can an Aboriginal person. And both men and women can lodge complaints of discrimination if they believe that they have been discriminated against on the basis of their gender.

But the Disability Discrimination Act (DDA) is different. The DDA makes it unlawful to discriminate against someone, or to treat someone less favourably, on the ground of their disability. It contains no equivalent provision barring discrimination against a person on the ground that they do not have a disability. Its purpose is to advance the opportunity of people with disability in our society.

So, if an employer decides to set aside 20 % of its graduate recruitment programme for people with disability it’s not against the law.

If an employer decides to create particular positions in their workplace for people with disability it’s not against the law.

And if an employer decides to set a target or quota for the number of people with disability it will employ over a certain period of time it’s not against the law.

In fact the ACT Government did this just last week - launching the ACT Public Service Employment Strategy for People with Disability - where it committed to doubling the number of people with disability in the ACT Public Service – to approximately 700 people - during the next four years.

So, now that we know that we can positively discriminate in favour of people with disabilities, why should we do it and how should we do it?

Let's have a look at another YouTube clip made by the UK Disability Rights Commission.


Ideally, there should be no need for positive discrimination measures in employment. 

If people with disability were getting a fair go in the first place then this would be the case. But we're not. There is still a problem.

People with a disability are not getting jobs, and discrimination is continuing, despite:

  • people with disability wanting to work (many of whom are highly qualified);
  • employers professing a willingness to employ people with disability; and
  • processes supposedly in place to achieve this aim.


The latest media release from the Australian Bureau of Statistics "Disability Australia 2009", released 2 May 2011, states the following:

While there have been significant improvements to support those with a disability in many parts of their lives, little improvement has been made in key areas of everyday life over the last six years: labour force participation remained low at around 54 %, compared to almost 90 % for people without disabilities; and Year 12 attainment was around 25 % for people with disabilities, compared to just over 50 % for people without disabilities.

The following stories highlight this situation.  They demonstrate that even if we were able to achieve equality in educational outcomes between students with and without disabilities, or, as in one case, even if every student with disability graduated with a university medal, the employment rate for people with disability would probably not change.

  • The first real life story is of a woman with a significant disability who, a few years ago, not only graduated with a law degree, but was awarded the university medal.  She had also won mooting competitions during her course.  She couldn't even get an interview in the public service, let alone a job.
  • The second story is my own experience -- I completed 30 interviews with law firms in my first year after graduating with a law degree.  I didn't get any of those jobs.  I was finally employed as a clerical assistant - the lowest level administration position in the NSW public service.  I was the only clerical assistant with a law degree.  My job was answering the phone and telling people the winning lotto numbers.  I was made redundant from that job by an answering machine.
  • The third story is about a computer programmer with Asperger's Syndrome.  He is a great programmer, but a poor communicator.  He can't get a job because he fails at interview every time.  But how many interviews do computer programmers do during their day-to-day job.  Why test him on something he'll never have to do again?

These stories are probably not atypical and are taking place every day in workplaces across Australia. The names, faces, disability types and stories may change, but the outcome is still the same.

So what is happening?

These stories, and the YouTube clips I showed earlier, highlight that the low employment rate is not necessarily related to educational achievement and not related to ability. Instead, they suggest that the low employment rate is related to employer attitudes, lack of understanding, and the system we use.

  • I think we need to unpack "merit selection" and what is really happening during the selection process. The UK Disability rights commission YouTube clip does that for us to some extent.
  • We need to ensure selection criteria only contain the inherent requirements of the job and do not prescribe how a job must be done, only the outcome or output. Apart from health and safety warnings, and descriptions on materials, does a cleaner need to read? Are we excluding people with disabilities in the recruitment process?
  • We need to examine necessity for tests and testing conditions. If initial testing of people requires completion of a written test at a computer, and we don't have screen readers available, aren't we excluding people who can't see the screen?
  • We need to look out for other barriers.
    • If interviews are conducted in inaccessible buildings, aren't we excluding people with physical disability?
    • If interviews are not available with an Auslan interpreter or a hearing loop, aren't we excluding people who are deaf or have a hearing impairment.
  • Further, we need to unpack what is happening during employment and what factors are preventing career progression
  • We need to unpack what else needs to be done, by all of us.

While we are doing this, we need to change the situation now, and we can do this by implementing positive discrimination measures as allowed by the DDA.

Let's take recruitment: 

    • Make a commitment to give every applicant with a disability an interview. This is what happens at Vision Australia. This commitment allows job seekers with disability a real opportunity to demonstrate their capacity to do the job that maybe was not evident in the written application. This commitment also gives jobseekers with disability opportunities to practice interview techniques and acquire knowledge and skills that may improve their chances of success skills for the next job
    • Make a commitment to give every applicant with disability a real opportunity to demonstrate or discuss capacity to perform the inherent requirements of the job during the interview process. In my experience, I was often not asked questions about how - as a person with a disability - I would do the job. I think it's really important for employers to ask questions about disability.  If employers don’t, I always bring up the topic at the end of the interview.
    • Make a commitment that if an applicant with a disability comes equal first or close to being first, the applicant with disability is offered the position - in consideration of barriers the applicant may have had in relation to career progression and lack of work experience and career advancement opportunities.
    • Ensure a proportion of graduate recruitment places are reserved for graduates with disability (noting that 20 % reflects the number of people with disability in the general population).
    • Set recruitment targets for employees with disability.  As an example, the ACT Government recently launched the ACT Public Service Employment Strategy which includes a target to double the number of public servants with disabilities over the next four years.
    • Ensure apprenticeship, traineeship and work experience opportunities for people with disability are created or a proportion of these positions are reserved for people with disability if your workplace has such opportunities and schemes.
    • For Public Sector employers: explore wider use of clauses 4.3A and 4.3B of Public Service Commissioner's Directions.   These clauses were introduced last year, and effectively created a new mechanism to engage people with disability as ongoing and non-ongoing APS employees, provided that the person has been assessed by a disability employment service provider as being unable, or unlikely to be able, to compete successfully in a traditional merit selection process due to their disability.  This can be for existing positions or new designed and created positions for the person, in consultation with the disability employment service provider.  This ensures that an agency head can shape an ongoing or non-ongoing position to the strengths, capacities and capabilities of a particular person with disability.  It is important that any position that is designed is sustainable, and meets a business need.

Let's look at career progression during employment:

    • Examine your processes associated with selection of staff for training opportunities and ensure staff with disability are eligible, notified, nominated or a target is set or quote reserved.
    • Similarly, examine your processes associated with selection of staff for travel opportunities.
    • Consider mentoring opportunities for employees with disability.
    • Ensure a comprehensive support and capacity building programme is developed for employees with disability and their managers.  This could include: a specific pool of funds for training opportunities for employees with disability; and all employees with disability to be given the opportunity to be matched with a mentor during their term of employment.

Finally let's look at other things that we can do:

    • Ensure recruitment agencies contracted by your organisations, as a requirement of their contract, must identify applicants with disability.  This should be monitored to ensure compliance.
    • Continue to work with government to ensure that any employees with disability, and their employers, can have guaranteed access to support on an as-needed basis, at any point of the employment continuum, and regardless of how the job was secured -- that is, independently, private recruitment agency or by government funded employment service provider.
    • Lobby government to fund the appointment of Diversity Field Officers, to be located within various industry groups and associations across Australia, as many employers feel more comfortable contacting someone known to them in the first instance, to ask specific questions about employment and disability.
    • Lobby for the expansion of the right to request flexible working arrangements to include employees with disability.  Currently, the National Employment Standards restricts the 'requests for flexible working arrangements' to parents and people with caring responsibilities for children under school age.  Expanding this right to people with disability will enable people with disability to have the same right to request flexible working arrangements.  This has been law in the UK now for several years.

There are many other things that you as employers can think of, and do, once we shift the paradigm of the merit principle, and accept that it is ok to discriminate positively in favour of people with disability.

So let's go back to those two questions:

  • The first question was “Can we discriminate positively in favour of people with disability?” To quote from Barak Obama “Yes we can”.
  • The second question was “Should we discriminate in favour of people with disability?” Given the disadvantage we experience, and given the fact that we know we are not getting jobs, I think “Yes we should”.

What do you think?

Thanks for the chance to speak with you today.