Anti-Discrimination Board of NSW

​Disability and the question of reasonableness 

Legal case: disability discrimination

Published 15 February 2018

People with disabilities have to be able to perform the inherent requirements of their job. Under NSW law, they may request reasonable services or facilities to assist them to perform their jobs and under the federal Disability Discrimination Act, 1992 (Cth) they are entitled to reasonable adjustments.

The question: "What's reasonable?" is sometimes hard to answer and will depend on the circumstances of each case. It is not reasonable if it will cause unjustifiable hardship to the employer or service provider. But what amount of hardship is unjustifiable? A recent case can help shed some light.

The facts

Mr Skavlos, a dermatologist from overseas, wanted to register to practice his profession in Australia. To do so, he had to become a fellow of the Australasian College of Dermatologists. The College required all applicants for registration to complete a training program and pass written and clinical examinations.

Mr Skavlos had been diagnosed as suffering from a phobia about sitting for examinations, and requested an exemption. This was refused, and negotiations about various other forms of assessment that might be used to help him gain registration broke down. He made a complaint of direct and indirect disability discrimination under the Disability Discrimination Act, 1992 (Cth).

The issues

Direct discrimination occurs when a person with a disability is treated less favourably than a person without that disability, in similar circumstances, because of his or her disability. Was the dermatologist treated less favourably than other applicants for registration because of his disability? He argued that he was, because the College refused to make reasonable adjustments to allow him to be registered.

Indirect disability discrimination occurs when there is a requirement that is the same for everyone, but it is more difficult for people with a disability to comply with – unless the requirement is 'reasonable in the circumstances'. Was the requirement that Mr Skavlos sit for the college's exams reasonable?

The decision

In the initial trial, the judge accepted that the phobia was a disability under the Act. However, the judge found that Mr Skavlos had not been treated less favourably because a person without his disability would have been subject to the same requirement. He was not subjected to direct discrimination.

The judge also decided that the requirement that applicants sit exams was not only reasonable, it was 'close to a necessity'. There was therefore no indirect discrimination.

Mr Skavlos appealed against the decision, and the Full Court upheld the trial judge's decisions. It said there was no direct discrimination because the College did not do anything to him just because of his disability.

It also agreed that the requirement to sit exams was reasonable. There were other ways of assessing his competence, such as work-based assessments, but it said that the cost and effort involved in creating an alternative means of assessment would impose an unjustifiable hardship on the College.

Take home points 

  • Qualifying bodies, such as licensing authorities or professional associations, are subject to state and federal anti-discrimination laws.
  • People with a disability are entitled to reasonable adjustments, services or facilities to enable them to meet qualifying requirements. Adjustments, services or facilities are not reasonable if they would impose an unjustifiable hardship on the organisation in question. What is an unjustifiable hardship? That depends on the individual circumstances of each case.
  • To prove direct discrimination, the person with a disability must show that they have been treated less favourably than others because of their disability. This involves being able to compare their treatment with that of others. (Except in Victoria, where they just have to show that they have been treated unfairly)
  • To prove indirect discrimination, the person with a disability must show that they have been disadvantaged because a requirement which applies to everyone is more difficult for people with that disability to meet. They must also show that the requirement is unreasonable. A requirement is reasonable if the alternatives would impose an unjustifiable hardship.
  • The court or tribunal has to decide these questions of reasonableness by weighing up all the facts and circumstances, including time, cost and potential benefits.

Sklavos v Australasian College of Dermatologists [2017] FCAFC 128

Back to February 2018 - Equal Time Newsletter​​​​​​

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