​Disability discrimination

    Disability discrimination factsheet PDF 165KB

    Examples of conciliated disability discrimination complaints

    Access to our services for people with a disability

    What does the law say about disability discrimination?

    It is generally against the law in NSW to treat you unfairly or harass you because you have a disability. This includes the following:

    • disability you have now;
    • a disability that someone thinks you have now, whether or not you actually have it;
    • a disability you had in the past, or that someone thinks you had in the past;
    • a disability that you will get in the future, or that someone thinks you might get in the future;
    • a disability that any of your relatives, friend, work colleagues or associates has now, had in the past or will get in the future; and
    • a disability that someone thinks any of your relatives, friends, work colleagues or associates has now, had in the past or might get in the future.

    Anti-discrimination law covers a wide range of disabilities and health problems. These include the following:

    • physical disabilities such as paraplegia, cerebral palsy, vision impairment or hemiplegia following a stroke;
    • a disease that makes a part of the body or brain work differently, such as arthritis, multiple sclerosis, heart disease, diabetes, epilepsy or cancer;
    • a mental illness or psychiatric disability, such as anxiety, depression, bipolar disorder, schizophrenia or an eating disorder;
    • a behavioural disorder such as ADHD or Asperger's Syndrome;
    • an intellectual disability such as Down syndrome;
    • a learning or cognitive disability such as dyslexia;
    • a change to a part of the body or brain after an accident or surgery;
    • a different formation of a body part, for example a missing or short limb; and
    • a virus or bacteria in the body that could cause disease or illness, such as hepatitis or HIV.
      Some disabilities may fall into more than one of these categories.

    More information ​​on infectious diseases, including HIV/AIDS

    Equipment and assistance

    The law also says that people must not discriminate against you because you have a guide dog, or because you need particular equipment or assistance from another person because of your disability. For example, you may need equipment or assistance for mobility, or to read or interpret information.

    Indirect discrimination

    Indirect disability discrimination is also against the law. This occurs when there is a rule or requirement that disadvantages people who have a disability more than people who don't have a disability - unless it can be shown that the rule or requirement is 'reasonable in all the circumstances'.

    For example, a requirement for all staff to start work at a specific time might indirectly discriminate against a person whose disability means they have to get a particular bus that only runs at certain times. It may be quite possible to organise that person's work so they could start and finish later.

    When does this law apply?

    Disability discrimination is generally against the law in the following areas:

    • in most types of employment - when you apply for a job or for a licence or registration to do a job, when you are at work, or when you leave a job;
    • when you get or try to get most types of goods or services - for example, from shops, banks, lawyers, government departments, the police, public transport,local councils, doctors, hospitals and other medical services, hotels, sporting venues and entertainment venues;
    • when you apply to get into or study in any State educational institution, which includes any government school, college or university;
    • when you rent accommodation such as houses, units, flats, hotel or motel rooms and commercial premises; and
    • when you try to enter or join a registered club, or when you get services from one. A registered club is a club that sells alcohol or has gambling machines.

    What are my work rights?

    Applying for a job

    In general, all job advertisements, jobs, apprenticeships and traineeships must be open to you, and you have the right to apply for them and be fairly considered for them on the basis of merit. This also applies to bodies which issue licences to perform particular jobs, for example taxi licences or registration to practice as a nurse.

    If you are the best person for the job and you can do all the essential parts of the job, then you should get the job, irrespective of your disability. Employers can only refuse to give you a job if you can't do the essential parts or 'inherent requirements' of that job.

    For example, if you can't drive, you could not perform the essential part of a driving job. However driving would not generally be regarded as an essential part of a clerical job where the previous employee occasionally drove to pick up a parcel from the post office.

    If you can't do a non-essential part of the job, the employer should make other arrangements to get this task done, such as give it to someone else. It is OK for an employer to ask you to go for a medical to work out if you can do the essential parts of the job.

    Special facilities

    If you are the best person for a job, the employer must also provide any special facilities or services you need to do it - unless it would cause them 'unjustifiable hardship' to do so. For example, you might need your desk adapted, or a different computer mouse, or some special software.

    In some cases employers may think that the facilities you need will cost too much - for example, they may say it is too expensive to install new ramps to access the building. But in deciding whether providing these facilities would cause them unjustifiable hardship, they must also consider the benefits to their other staff and clients, as well as to you.

    When you are in a job

    In general, you have the same right to training, promotion and work benefits as other employees if you have a disability. Again, employers must provide you with any special facilities or services you need to access training, promotion or work benefits, as long as this won't cause them unjustifiable hardship.

    You generally have the right to stay on in your job if you have a disability, or you acquire a disability after you begin the job. An employer can only dismiss you, medically retire you or make you redundant because of your disability (or the disability or your relative or associate) if you can't do the essential parts of your job.

    As when you apply for a job, your employer must provide any special facilities or services you need to continue to do your job, as long as this won't cause them unjustifiable hardship. If there are non-essential parts of your job that you can't do, your employer must make arrangements to cover these in some other way.

    Harassment

    You also have the right not to be harassed by managers, staff or clients at work because you have a disability. More information about harassment....

    Carer's responsibilities discrimination

    If you are treated unfairly or harassed at work because you caring for or supporting a child or immediate family member with a disability, you may have been unlawfully discriminated against. More about carer's discrimination.....

    What are my rights to goods and services?

    In general, you have the right to apply for and get goods or services in the same way as people who don't have a disability. People must not harass you because of your disability while you are getting goods or services.

    For example, people must not refuse you service because you (or your relative, friend, work colleague or associate) have a guide dog (for seeing, hearing or mobility) with you. All guide dogs must be allowed to accompany their owners, even into eating areas.

    People must not refuse you service because you (or your relative, friend, work colleague or associate) use a wheelchair. Anything that you need to get into to access a service (for example a building or transport) must be accessible to you, unless it would cause the owner 'unjustifiable hardship' to make it accessible. Obviously, to make some existing buildings and vehicles wheelchair accessible may be very expensive.

    However, there may be less expensive changes that could improve accessibility without causing unjustifiable hardship. If this is the case, the changes should be made. At the very least, service providers should have plans for how they are going to make their service accessible in the future.

    The cost of making new buildings or services accessible from the start will generally be lower than the cost of modifying old buildings. So it may be harder for the owner of a new building or service to prove unjustifiable hardship.

    Goods or service providers must not turn you away because they think that you (or your relative, friend, work colleague or associate) might offend or worry other customers.

    If your disability means that you don't have a driver's licence, goods or service providers should allow you to provide other forms of identification.

    You also have the right to get most goods or services on the same terms as people who don't have a disability. For example, for example you must not be charged higher prices, or have to meet different rules.

    Exceptions - superannuation and sport

    There is an exception in the law for superannuation and insurance providers. They can discriminate against people with disabilities if there is good statistical evidence to support their decision, or if another law says that they must discriminate on the basis of disability.

    There is also an exception for sport. Sport organisers can exclude a person with a disability if they are not capable of performing the actions required, or they don't meet the relevant skill level. Also, sporting activities can legally be targeted for people with a particular type of disability, and exclude people who don't have that disability.

    What are my rental accommodation rights?

    Applying to rent premises

    In general, you have the right to rent accommodation in the same way as people who don't have a disability. A real estate agent or landlord can't refuse you accommodation because you have a disability, or because others living nearby might be offended or troubled by your disability.

    Generally, a real estate agent or landlord can only refuse to rent to you if the accommodation is not large enough for your family or group, or you can't pay for it, or your references don't check out.

    The agent or landlord must also provide you with any special facilities that you need to use the property, unless this would cause them 'unjustifiable hardship'. If it would cause them unjustifiable hardship, they can refuse to rent the property to you. 

    Exceptions - shared households and special accommodation

    There is an exception in the law for shared accommodation in a private household. If you share facilities with the owner of the accommodation or their close relative, and the shared accommodation is for six or less people, then they are allowed to choose who they want to live with them. It won't be against the law if they decide they don't want to live with you because you have a disability. This does not apply if the accommodation is self-contained and does not shared facilities.

    There is also an exception for accommodation that is provided by a charitable or other not-for-profit body specially for people with a particular type of disability. They can exclude you if you don't have that type of disability.

    When renting

    You also have the right to rent accommodation on the same terms as people who don't have a disability. For example:

    • the accommodation provider must not make you pay extra rent or a larger bond because you have a disability, or your friend, relative, work colleague or associate has one - even if they are providing you with special facilities;
    • they must not give you a shorter tenancy or evict you because you have a disability, or your friend, relative, work colleague or associate has one; and
    • they must not make you wait any longer for accommodation than people who don't have a disability.

    You also have the right not to be harassed while renting because you have a disability, or your friend, relative, work colleague or associate has one.

    What are my State education rights?

    State education includes education at any State university, State college, TAFE or State school. It does not include private schools, colleges or universities, which are not covered by NSW disability discrimination law.

    In general, you have the right to apply for and get education at any State educational institution in the same way as people who don't have a disability. You can generally only be refused entry if you don't meet the relevant academic requirement.

    The institution must also make any adjustments to their buildings and provide you with any special facilities you need to access their education, unless this would cause them unjustifiable hardship.

    This means that they must generally make adjustments to allow you to attend classes, study and sit for tests and exams. For example:

    • if you have limited mobility, they should try to ensure that your classes are in accessible rooms that are close together, so you can get easily from class to class;
    • if you have difficulty writing, they may provide assistance such as a recording of the class, note-taking equipment or an amanuensis (note taker);
    • if you have a print disability, they may provide assistance such as recordings of textbooks, reading equipment or a personal reader; or
    • if you have your own equipment or a person to help you, the education provider should allow you to use these, and assist you to use them if needed.

    If the building adjustments or special facilities you need would cause the educational institution unjustifiable hardship, they may be able to refuse to admit you, or refuse to provide these requirements. However, in many cases there may be a compromise solution that will solve the problem.

    Educational institutions can provide education specifically for people with a particular type of disability, and refuse admission to people who don't have that type of disability.

    If you have a complaint about a private school, you may be covered by Federal discrimination laws. Contact the Australian Human Rights Commission on (02) 9284 9600 for more information, or go to Australian Human Rights website.

    What are my registered club rights?

    Registered clubs may include RSL clubs, workers clubs, most ethnic clubs and most sporting clubs. Voluntary clubs such as Rotary and Lions are not registered clubs and are not covered by NSW disability discrimination law. They can discriminate against people with a disability if they choose to.

    Joining a club

    In general, you have the right to become a member of a registered club in the same way as people who don't have a disability. They must not refuse you membership because other members might be offended or troubled by your disability, or the disability of your friend, relative, work colleague or associate. The club can generally only refuse you membership for the same reason that they would refuse it to people who don't have a disability - for example because you have been violent towards other customers.

    The club must also give you access to its buildings and provide you with any special facilities you need to use its services, unless this would cause them unjustifiable hardship. If giving you access or special facilities would cause them unjustifiable hardship, they may be able to refuse you entry. However, in many cases there may be a compromise solution that will solve the problem.

    Being a club member

    You have the right to get registered club benefits and services on the same basis as people who don't have a disability. Again, they must provide you with access and any special facilities you need, unless it would cause them unjustifiable hardship.

    For example:

    • if you want to dance in a wheelchair they should allow this; or
    • if you need a guide dog, they must allow it to accompany you at all times, including in eating areas.

    You have the right to keep your membership in the same way as people who don't have a disability, and the membership suspension and removal rules must be the same for everyone. You can only be suspended or barred from a club for the same reasons as a person who does not have a disability.

    Exceptions - sport and special clubs

    A club may be able to refuse you access to some sporting activities. For example, they can do this if you are not capable of performing the actions required, or you don't meet the relevant skill level.

    A registered club whose main object is to provide benefits for people with a particular type of disability can refuse membership and services to people who don't have that type of disability.



     
     

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