disability discrimination
📖 O que é disability discrimination? Significado e conceito
Disability discrimination involves treating a person less favourably due to their disability, or imposing a requirement or condition that a person with a disability cannot reasonably meet. This can happen in various areas, such as employment or the provision of goods and services. For instance, in employment, it could involve a company requiring an employee with a hearing disability to perform duties without necessary assistance like flashing lights or qualified interpreters, which they cannot reasonably comply with.
There are two main types: direct and indirect discrimination. Direct discrimination is when someone is treated less favourably because of their disability compared to someone without a disability in similar circumstances. Indirect discrimination occurs when a requirement or condition is imposed that is the same for everyone, but it has the effect of disadvantaging people with a particular disability, and it is not reasonable in the circumstances.
Complaints about disability discrimination are often lodged with bodies like the Anti-Discrimination Board or referred to tribunals, such as the NSW Civil and Administrative Tribunal. These bodies investigate whether the alleged conduct, if proven, would constitute discrimination. If a complaint is deemed frivolous, vexatious, misconceived, or lacking in substance, it may be declined.
For self-represented litigants, understanding the specific requirements for proving discrimination is crucial. This includes showing less favourable treatment or an unreasonable requirement, and demonstrating that the treatment or requirement was a result of the disability. The respondent may provide non-discriminatory reasons for their actions, which the complainant would need to counter.
📋 Requisitos
- The applicant must have a disability.
- There must be a requirement or condition imposed.
- The applicant must be unable to comply with the requirement or condition.
- The requirement or condition must not be reasonable.
- Alternatively, there must be less favourable treatment of the applicant.
- The less favourable treatment must be a result of the applicant's disability.
📝 Procedimento
- Lodge a complaint of discrimination with the relevant board or authority (e.g., Anti-Discrimination Board).
- The board or authority investigates the complaint.
- If the complaint is deemed lacking in substance, it may be declined.
- The applicant can request the complaint be referred to a tribunal if declined.
- The tribunal may require leave (permission) for the complaint to proceed.
- The tribunal assesses whether to grant leave based on the substance of the complaint.
💡 Exemplos
- An employee with a hearing disability is required to attend training sessions and staff meetings without qualified interpreters, making it difficult for them to participate.
- A council declines to provide information to a person with bipolar disorder about their mother, despite the person being their mother's guardian, and calls the police after an incident.
- A service provider treats a customer less favourably because of their disability in relation to the provision of goods and services.
- A company imposes a condition that an employee perform their job without the assistance of flashing lights or a telephone typewriter, which is essential for their hearing disability.
📚 Base legal
- Disability Discrimination Act 1992 (Cth)
- Human Rights and Equal Opportunity Commission Act 1986 (Cth)
- Anti-Discrimination Act 1977 (ADA)
❓ Perguntas frequentes
What is the difference between direct and indirect disability discrimination?
Direct discrimination is when you are treated worse specifically because of your disability. Indirect discrimination is when a rule or condition applies to everyone but unfairly disadvantages people with your disability, and that rule or condition isn't reasonable.
Can I complain about disability discrimination in any area?
The cases show complaints can be made in areas like employment and the provision of goods and services. The specific laws will outline the areas covered.
What happens if my complaint is 'lacking in substance'?
If your complaint is considered 'lacking in substance' by the initial investigating body, it may be declined. You might then have the option to request that it be referred to a tribunal, which may require you to get permission for it to proceed.
Do I need to prove the other party intended to discriminate?
The cases indicate that the focus is on whether less favourable treatment occurred or if an unreasonable condition was imposed due to your disability, rather than necessarily proving the other party's intent to discriminate.
What kind of evidence do I need to support a disability discrimination claim?
You would need to provide sufficient information to show you were treated less favourably on the grounds of your disability, or that an unreasonable requirement or condition was imposed that you could not comply with. This might include details of the incident, how you were affected, and why you believe it was due to your disability.
Can a company defend itself against a disability discrimination claim?
Yes, a company or individual accused of discrimination can provide plausible and non-discriminatory reasons for their actions. The tribunal or investigating body will consider these reasons when evaluating the complaint.