Disability discrimination law puts the burden on the people it should protect
People with Disability Australia (PWDA), the national disability rights and advocacy organisation, is calling for urgent reform of the Disability Discrimination Act so organisations have greater responsibility to prevent discrimination before it happens.
Three years after the Disability Royal Commission handed down its Final Report, people with disability are still being asked to carry too much of the burden when they experience discrimination.
Australia’s main disability discrimination law, the Disability Discrimination Act 1992 (DDA), largely relies on an exhausting, reactive complaints model that forces individuals to challenge powerful organisations after discrimination has already taken place.
For many people with disability, that means experiencing discrimination, gathering evidence, making a complaint and navigating complex legal processes themselves.
PWDA wants that to change.
The Disability Royal Commission also recognised the need for reform, recommending significant changes to strengthen the DDA and shift greater responsibility onto organisations to prevent discrimination.
In our submission to the Australian Government’s review of the DDA, Fight for Me Instead of Making Me Fight, we called for reforms that would require organisations to prevent discrimination and remove barriers before someone is harmed.
Our submission was informed by the experiences and expertise of the PWDA Board, individual advocates and a national survey of 303 people, 86 per cent of whom identified as people with disability.
People told us that making a discrimination complaint can be exhausting, inaccessible, ineffective and retraumatising.
One person PWDA spoke to described repeatedly experiencing disability discrimination while looking for work and while employed in the public service.
They described being offered a public service job working with people with disability. They said the employer withdrew the offer after they disclosed their disability and requested a reasonable adjustment.
“Prior to that…they were all over me. They were happy. They said, ‘You’re the best candidate we’ve had’… And then I sent the forms off with the comment regarding my reasonable adjustment and I didn’t hear anything for three days.”
When they eventually spoke with the hiring manager, they said they were told they would not have received an offer of employment had they disclosed their disability earlier.
“My future manager, she was angry. She’s like, ‘Why didn’t you disclose this at the beginning of the hiring process? I wouldn’t have hired you if I’d known this. We don’t do this sort of thing here.’”
They sought advice from a disability legal service but faced another problem. They were told that because the employer had made the discriminatory comments verbally, rather than putting them in writing, it would be difficult to prove what had happened.
They were also warned that even if they secured the job, they would be entering a workplace that had already demonstrated hostility towards them because of their disability.
It is not the only time they experienced discrimination.
They recalled another manager questioning why they should receive the same pay as their colleagues because they needed reasonable adjustments.
I’ve had comments from managers saying… ‘We’re paying you the same as everyone else, and you’re only half a person with a reasonable adjustment. So why should we pay you the same as everyone else? You’re not a whole person.
Their experience highlights the injustice that burden of gathering evidence, making the complaint and fighting to have it addressed places on people who have experienced discrimination.
PWDA wants the DDA to shift more of that responsibility onto the organisations with the power to prevent discrimination in the first place.
To achieve this PWDA is advocating for:
- Positive Duties: Employers, schools, businesses and service providers should have a legal duty to prevent discrimination, alongside a stand-alone positive duty to provide adjustments.
- Regulatory Enforcement: The Australian Human Rights Commission (AHRC), or another regulator, should have the resources and powers to enforce the law, including the ability to issue civil penalties for non-compliance.
- Fairer rules for proving discrimination: The current Comparator Test should be replaced with a “detriment test,” with changes to the burden of proof so people with disability do not carry so much of the responsibility for proving discrimination.
- Intersectional Protections: The DDA should recognise discrimination that happens because of a combination of two or more protected attributes.
PWDA Acting CEO, Megan Spindler-Smith, says people with disability should not have to experience discrimination in any capacity.
People with disability should not have to experience discrimination, carry the harm and then take on the burden of fighting the system that caused it. Three years after the Disability Royal Commission, we need laws that do more to prevent discrimination in the first place and place greater responsibility on organisations to make inclusion part of how they operate.
PWDA is also seeking to narrow the unjustifiable hardship defence and extend protections against harassment, vilification, and offensive behaviour into online environments, disability group homes and aged care settings.
More than 30 years after the DDA became law, minor adjustments are not enough. Without structural reform and proactive duties to prevent discrimination, Australians with disability will continue to be forced into costly, re-traumatising legal battles simply to enforce their rights.