Creating an Inclusive Workplace for People With Disabilities

This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.

Creating an Inclusive Workplace for People With Disabilities

According to the Australian Bureau of Statistics’ most recent Disability, Ageing and Carers, Australia: Summary of Findings survey in 2018, 17.7% of Australians have a disability and 5.5% of Australians have a severe disability.[1] Almost 10% of people with a disability aged 15 years or older reported experiencing disability discrimination in the preceding 12 months.[2]

If you are an employer, you have a legal obligation to take reasonable precautions and exercise due diligence to prevent disability discrimination in the workplace. Failure to do so means you may be vicariously liable and legally responsible for the discriminatory actions of your employees or agents.[3]

This factsheet aims to provide information to employers, particularly small businesses with limited resources, on practical ways to creative inclusive workplaces for people with disabilities.

What is disability discrimination?

Disability discrimination is when someone is treated less favourably because of their disability. Under federal and state laws, a disability means:

‘(a) total or partial loss of the person’s bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person’s body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.’[4]

A disability includes a current disability, a past disability or one that may exist in the future. [5]

Disability discrimination laws also cover a disability that is attributed to a person.[6] This means that a person can be discriminated against on the basis of a disability even if they do not have a disability but are presumed to have one, and they are treated less favourably because of that presumption.

Direct disability discrimination

Direct disability discrimination is when someone blatantly treats another person negatively or unfavourably because of a disability. This can include ableist slurs, comments or jokes, stereotyping or excluding someone because of their disability.

Example

Two weeks ago, Tiana started work as a junior apprentice mechanic at a car repair shop. Tiana is 17-years old and in a male-dominated workplace, and this is her first job so she is shy and nervous. Whenever she makes a mistake, her supervisor Carl mocks her and makes jokes about her being ‘slow in the head’ and ‘on the spectrum’ in front of the other workers.

Indirect disability discrimination

Indirect disability discrimination is a less obvious type of discrimination and typically happens when a policy applies equally to everyone, but in practice disadvantages some people because of their disability.

Example

Aisha is a data analyst and works for a large business that provides all its employees with the same 13” screen laptop.

Aisha’s astigmatism has been getting worse from staring at a small screen all day. She was advised by her doctor that she should switch to using a large desktop monitor or a laptop with a bigger screen.

Aisha receives a medical letter from her doctor and passes it onto her boss Steve. Steve refuses her request because he does not want to look like he’s ‘playing favourites’ by giving Aisha new, bigger equipment.

What obligations does an employer have to a worker with a disability?

Under the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act 1984 (SA), it is unlawful to discriminate against workers in employment because of a disability.

The term ‘workers’ includes: job applicants, employees, agents and independent contractors.

The term ‘employment’ includes[7]:

• the recruitment process,
• the terms and conditions of employment,
• the access to opportunities for promotion, transfer, or training, and/or any other benefits associated with employment,
• dismissal, or
• subjecting the worker to any other disadvantage.

Exceptions

However, it may not be unlawful to exclude a person on the basis of a disability if that person is unable to carry out the inherent requirements of particular work[8] or adequately perform the work without endangering themselves or others.[9] The term ‘inherent requirements’ means necessary or essential parts to perform the work. For example, to perform the work of a taxi driver, it is essential for a worker to have an appropriate licence.

Before excluding a person in this way, employers must consider if the person with a disability can be provided with reasonable adjustments . The term ‘reasonable adjustments’ in this context means possible and achievable modifications to help someone do their work. For example, a reasonable adjustment for a worker that uses a wheelchair may be to install ramps in the workplace.

However, employers do not have to make adjustments if making the adjustments would cause them unjustifiable hardship. The term ‘unjustifiable hardship’ means severe and unfair hardship. For example, reasonable adjustments to renovate a bathroom and install a lift in a workplace to make it wheelchair accessible may cause unjustifiable hardship to a small not-for-profit employer with limited funding.

To determine if an adjustment imposes unjustifiable hardship, employers must consider:

• the effect of the disability on the person concerned,
• the nature of the benefit or detriment that the adjustment would have on the person,
• the cost of making the adjustment relative to the employer’s financial circumstances, and
• if financial assistance is available to the employer (e.g. via the Australian Government’s Employment Assistance Fund).[10]

Example

If we look at Aisha’s case above under ‘Indirect disability discrimination’, Steve could have made an adjustment for Aisha by providing her with a large monitor or a laptop with a bigger screen. It is unlikely that purchasing new equipment would have imposed an unjustifiable hardship on Steve, particularly as it is a large business.

What can I do as an employer to create a disability-inclusive workplace?

As an employer, you have the power to actively shape the environment of your workplace and to create a standard that does more than just the bare minimum.

Below are four practical suggestions with steps to help you create an inclusive workplace for people with disabilities.

• Create strong anti-discrimination policies

Implement a comprehensive anti-discrimination policy

• Develop and enforce a comprehensive anti-discrimination policy that explicitly includes disability discrimination and states that it is unlawful
  • Clearly communicate to all workers that there is zero tolerance for ableist and offensive jokes, comments and behaviour
• The policy should include a complaints process and outline how complaints will be dealt with regard to reporting, investigation, confidentiality, timeframes and potential outcomes

Ensure equitable recruitment and employment

• Review job descriptions and recruitment, promotion and termination policies to ensure they are fair, transparent and unbiased
• Promote the employment and career advancement of people with disabilities in the workplace, including in senior decision-making positions with authority to create change

Review and amend existing policies

• Review existing policies to ensure they do not indirectly discriminate against people with disabilities and amend accordingly
  • g. Modify and ease policies regarding breaks so people with certain disabilities have the option to rest more frequently

• Reasonably modify the workspace to be more accessible
• Provide adjustable chairs and desks so workers can tailor it to their own needs
• Provide the option for extra lighting or enlarged screens for people with visual impairments
• Install an access ramp and ensure wide enough doors and pathways for wheelchair access

• Provide expert training and resources
• Provide mandatory diversity and/or cultural awareness training to educate staff on issues experienced by people with disabilities to foster understanding and empathy between staff
• Provide implicit/unconscious bias training to all staff, particularly managers, decision-makers and recruiters
• Provide access to employee assistance programs or counselling services for staff who have reported discrimination

• Foster an accepting and safe workplace culture
• Consider creating and implementing a Disability Action Plan with the guidance of the Australian Human Rights Commission
• Appropriately recognise and respect lived experiences of people with disabilities
• Use inclusive language in all internal and external communications, including policies, emails, announcements and documents
• Encourage the formation of employee resource groups or networks for people with disabilities
• Support and participate in community events, celebrations and initiatives

Overall, it will be important to take a human-centred approach when taking the above steps. Consult with staff, particularly workers with a disability, and seek feedback about how inclusive the workplace is and how it can be improved.

Remember that positive, safe and inclusive workplaces need to be maintained – it is an ongoing process. Regularly check in with staff, continue to provide training and encourage empathy and respect amongst workers.

Resources

• Disability Action Plan Guide (Australian Human Rights Commission)
• Employment Assistance Fund (JobAccess)
• Disability Employment Toolkit (SA Government)

If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.

This factsheet is the third instalment of our ‘Creating an Inclusive Workplace’ series. Our previous factsheets in this series are:

• Creating an Inclusive Workplace for LGBTIQA+ People
• Creating a Racially Inclusive Workplace

[1] Australian Bureau of Statistics, ‘Disability, Ageing and Carers, Australia: Summary of Findings’ (2018) https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release.

[2] Ibid.

[3] Disability Discrimination Act 1992 (Cth) ss 122-123 (‘DDA’); Equal Opportunity Act 1984 (SA) s 91 (‘EOA’).

[4] DDA s 4; EOA s 5.

[5] DDA s 4, EOA s 66.

[6] Ibid.

[7] DDA ss 15-17; EOA ss 67-68.

[8] DDA s 21A.

[9] EOA s 71.

[10] DDA s 11.