For example, a person with a neurological condition is not hired because the employer assumes they will be unreliable.
What is impairment?
The definition of impairment is broad, and includes many types of disability, such as:
- Physical: total or partial loss of bodily functions; malfunction or disfigurement of part of the body.
- Psychiatric: mental illnesses including depression, anxiety, schizophrenia, bipolar disorder, anorexia.
- Sensory: visual impairment, blindness, hearing impairment, deafness.
- The presence in the body of organisms capable of causing illness or disease, such as hepatitis, AIDS and HIV positivity.
- Mental or neurological conditions, such as learning more slowly, epilepsy, multiple sclerosis, autism and intellectual disabilities.
- Reliance on a guide, hearing or assistance dog, a wheelchair or other remedial device.
What is impairment discrimination?
Impairment discrimination happens when someone is treated unfairly because of their impairment.
This includes disabilities and health conditions which are:
- temporary
- long-term
- former
- visible
- hidden.
Discrimination on the basis of an impairment is unlawful whether or not:
- the assumptions the person made about your impairment were correct
- the person who discriminated against you didn’t mean to discriminate or didn’t think they were discriminating against you.
The motive for the discrimination doesn’t matter – what matters is the effect of the behaviour.
Discrimination on the basis of impairment can be direct or indirect.
Direct discrimination happens when a person is treated worse than others because of their impairment.
Indirect discrimination happens when a rule, policy, or practice is difficult – or impossible – to comply with because of a person's impairment, unless it is reasonable in the circumstances.
For example, a business only accepts written forms and refuses to help someone who cannot complete long forms because of their disability.
It is also unlawful to discriminate against someone because of their connection with a person with an impairment. This includes discrimination based on their relationship or association with someone with an impairment, such as a:
- friend
- family member
- co-worker.
When and where it’s unlawful to discriminate
It is unlawful to discriminate against a person because of their impairment in many areas of public life, including:
- At work: including in relation to recruitment, job offers, training, promotion, conditions, and dismissal.
- In education: schools, universities, TAFE and other training providers
- In accommodation: including when renting, applying for housing, or using short-term accommodation.
- In goods and services: shops, cafés, banks, loans, government or other services.
- In clubs: Membership, benefits and participation.
- In state government administration: government agencies providing services or public programs.
There may be circumstances where a valid exemption applies (see below).
Special services or facilities
Many people with impairment can take part equally in work, study and community life when special services or facilities are provided.
This could include a small adjustment that helps a person with impairment to access a service, job, or opportunity.
Examples include:
- modifying a work station
- adjusting tasks or hours
- offering information in accessible formats
- providing communication support
- allowing extra time to complete forms or assessments.
An organisation must provide special services and facilities unless doing so would cause them unjustifiable hardship.
Whether supplying special services or facilities would cause unjustifiable hardship depends on:
- the nature of the special service or facility
- the cost of providing it
- the financial circumstances of the provider
- any disruption that might be caused
- the numbers of people benefited or disadvantaged, and the nature of the benefit or detriment.
When discrimination may be lawful (Exemptions)
There are some circumstances when discrimination on the basis of impairment is allowed. These are called ‘exemptions’.
Exemptions apply only in limited situations and only when they are reasonable.
Examples include:
Genuine occupational requirements
It may be lawful to discriminate on the basis of impairment in a work context if there is a ‘genuine occupational requirement’ that means a person with an impairment cannot safely carry out essential parts of a job, and no reasonable adjustment would fix the issue.
For example, it was a genuine requirement for a rail ticket inspector to be able to jump from a platform to an uneven surface and to chase fare evaders. A man who had undergone 2 knee operations was unable to do this.
Competitive sport
For people over the age of 12, participation in competitive sports can be restricted to people who can effectively compete or to people with a specific or general impairment.
Insurance
Insurance providers can discriminate on the basis of impairment provided the decision is based on reliable statistical or actuarial data and is reasonable.
For example, an insurance company may charge different premiums or provide different levels of cover if the decision is backed by sound data and is reasonable.
Public health
It can be lawful for a person to do something that is reasonably necessary to protect public health.
For example, it may be lawful to prevent a person with measles from entering a public place.
Equal opportunity and welfare measures
Programs that foster equality by supporting people with impairments, or promoting equal opportunity for people with impairments, may be lawful.
For example, providing concessions or dedicated services for people with impairments.
What you can do
If you believe you have been discriminated against because of an impairment, you can make a complaint to the Queensland Human Rights Commission.