Workplace Diversity Programs and EqualEmployment Opportunity
A paper written and delivered by Aileen McFadzean on behalf of Women With Disabilities Australia (WWDA) at the Workplace Diversity: Innovation and Performance Conference, Canberra, February 1998. Copyright WWDA 1998.
Although the concept of a Workplace Diversity Program is new, the application of equal employment opportunity principles to the Australian public service is not. Despite the fact that Commonwealth Departments have developed equal opportunity programs as required under the Public Service Act and presumably implemented the 1993 Strategic Plan for Equal Opportunity in the Public Service, discrimination, be it on the basis of sex and/or disability, happens.
My aim today is to firstly give you an understanding of the double disadvantage experienced by women with disabilities in relation to their employment. I will then outline the key features of the Disability Discrimination Act 1992. All new initiatives in the area of equal employment opportunity need to be understood in the context of the legal framework for non discriminatory action. Thirdly, I will draw on my experience as a practitioner in the area of disability discrimination to outline some of the key factors which are relevant in findings of disability discrimination under the Disability Discrimination Act in the Australian Public Service.
Women tend to earn less money than men, are under represented at management level and still bear most of the responsibility for housework and child rearing. People with disabilities have higher unemployment and are less likely to work in management. There is a distinction between men and women with disabilities. Women with disabilities experience not only disadvantage as a result of their gender, but also significant disadvantage on the ground of their disabilities. The South Australian Equal Opportunity Commission’s resource guide entitled Affirmative Action For Women With Disabilities states that women with disabilities generally earn less than men with disabilities performing the same or similar work. Women with disabilities are also identified as having a greater level of unmet need for employment related disability services. This makes it even harder for women with disabilities to find employment.
The double disadvantage experienced by women with disabilities needs to be appreciated in the context of the employment profile of the Australian Public Service. The Strategic Plan for the Australian Public Service published in 1993 identified an overall reduction of the number of people with disabilities employed since 1986. The major reasons for the reduction were multiskilling and broadbanding of positions and an overall reduction in base grade jobs. This trend can create difficulties for some people with disabilities who may not be able to perform the range of required tasks. The Strategy’s recommendations concerning job redesign and realistic budgeting for the provision of equipment, needs to be a part of any workplace diversity program.
The Commonwealth Disability Strategy is a ten year plan to eradicate discrimination from all areas of public administration. It required all Departments to lodge Action Plans with the Human Rights and Equal Opportunity Commission. An Action Plan is simply what the term suggests – a plan of action to remove barriers to equal access to Department services, programs and employment. Therefore, Agencies which included employment issues including access to the built environment within their Plan have done much of the hard work. However, in none of the draft plans that I had the opportunity to consider was the issue of the greater barriers to employment experienced by women with disabilities addressed. I recommend that a specific action plan or affirmative action policy be developed and included in Workplace Diversity Programs in relation to women with disabilities.
One of the aims of Workplace Diversity Programs is to enable employees to better juggle workplace and family responsibilities. Family responsibilities tend to be disproportionately borne by women, including women with disabilities. Despite well intentioned management and equal employment opportunity programs, people with disabilities often feel that they have a certain number of credits on which to draw and there is a limit as to how many adjustments they can request and how much flexibility they are entitled to. Management will need to appreciate that flexibility will be necessary in relation to both disability issues and family responsibilities and employees are entitled to flexibility in relation to both these issues. Sometimes the gender issues and disability issues are entwined.
The Disability Discrimination Act 1992 was enacted to prohibit discrimination on the ground of disability in a range of areas and went further than any existing State legislation in conferring rights on people with disabilities. Disability discrimination involves treating or proposing to treat a person less favourably on the ground of his or her disability than a person without that disability would be treated in the same or similar circumstances. In relation to the employment of people with disabilities it is unlawful to discriminate against people with disabilities in the arrangements made for determining who should be offered employment and in the determination of who should be offered employment. It is also unlawful to discriminate against people with disabilities in the terms or conditions of employment and in access to training, promotional and transfer opportunities or any other benefits of employment. Discrimination also includes dismissing an employee or subjecting the person to any other detriment on the ground of disability.
It is lawful to discriminate against an employee if the employee cannot fulfil the inherent requirements of the job. Furthermore, it is a defence in the hiring or firing of a person with a disability if the employment of that person would cause an unjustifiable hardship. A range of factors, including the benefit to the employee will be considered in evaluating any hardship.
The Act also covers indirect discrimination which I will outline later in this paper as well as harassment on the ground of a disability. Discrimination does not have to be intentional and disability only needs to one of the reasons why a person needs to be treated in a certain manner.
The Public Service Bill 1997 states that the Public Service Commissioner will issue a Commissioner’s Direction on fairness and employment and set out the substantive requirements for a Workplace Diversity Program. The following issues will need to be addressed by management in any Workplace Diversity Program if employment discrimination is to be eliminated. These issues crop up again and again in discrimination cases:
- workplace assessments and induction;
- training and promotional opportunities;
- medical assessments and termination;
- the merging of disability and personality issues and appropriate management responses;
- indirect discrimination; and
Workplace needs assessments and induction
It is essential that workplace needs assessments are performed, either before or as soon as possible after people with disabilities commence employment. A workplace needs assessment involves employing a qualified person such as an occupational therapist or an organisation with experience in that disability. The employee should be involved in any such assessment and may be aware of any of the adjustments that will need to be made. This may obviate the need for an external consultant to be involved in the workplace needs assessment. It is important not to delay an assessment as delay can result in a person performing a limited range of duties, affecting his or her confidence and integration into the workplace.
An assessment can ensure that management is aware of any adjustments which need to be made to ensure an employee with a disability can carry out his or her functions. This might entail new equipment and flexible work arrangements. The lack of a workplace assessment has been a key factor in at least two findings under the Disability Discrimination Act. An assessment is a fundamental requirement for achieving equal employment opportunity in the workplace.
I also believe that it is important for managers to arrange for disability awareness training. This should be done irrespective of the employment of any particular person. On other occasions it might be necessary to have disability awareness training relating to the employment of a person with a disability. Commissioner Jones, in the McNeill case, found that the application of the reasonable adjustment principle requires that managers take positive steps to inform themselves of the way in which a person with a disability will impact on other staff, make co-workers aware and create an atmosphere of acceptance. On occasions there will be no particular impact on other staff and management will need to be guided by the new employee in this respect.
Training and promotional opportunities
These are areas which are constantly overlooked in providing equal employment opportunities in the workplace. There can be a belief that once a person with a disability is employed, that equal opportunity exists. As with most employees, employees with disabilities generally expect that they will eventually be promoted. Training can be relevant for a person’s current position, extended duties and to qualify for any promotion. The Disability Discrimination Act prohibits discrimination in relation to training and promotional opportunities.
Equal opportunity may require, for example, training material to be put into an alternate format such as braille or cassette. Further, if a person is unable to work full time there may be an assumption that the person could not perform managerial tasks. In this situation, job sharing of managerial responsibilities should be considered.
Medical assessments and termination
A medical assessment may be required when an employee notifies management or it is evident that a person’s condition has deteriorated and it raises a question regarding the person’s capacity to perform his or her job. It is essential that an appropriately trained person perform the assessment. For example, an ophthalmologist may not be the appropriate person to comment on the capacity of a person with a vision impairment to perform his or her work functions. An occupational physician or an organisation such as Royal Victorian Institute of the Blind or Yooralla might be more appropriate. A medical assessment which does not relate to work functions will not be sufficient. There are cases where reliance on advice from inappropriate sources, particularly in relation to capacity to perform the job, has led employers to discriminate unlawfully.
The merging of disability and personality issues and appropriate management responses
In at least two cases in which discrimination was found to have occurred, there seemed to be a blurring of disability and personality issues.
In one case involving a vision impaired employee, her mode of interacting with colleagues involved peering, standing very close to gauge expressions and calling out. These are traits exhibited by many people who are vision impaired. Because this was not understood, the characteristics were taken to be personality traits and her colleagues responded negatively to her.
In another case, the disability issues were not appreciated and reasonable adjustments were not made. The efforts made by the employee to have her needs addressed were interpreted negatively as her being pushy and self focussed.
If in both cases there had been better understanding of the disability issues, there may not have been a personality conflict.
One type of discrimination which is often overlooked is indirect discrimination. People often fail to recognise this type of discrimination, because it involves a policy which is applied to everybody. The crucial issue is the disparate impact on a person with a disability and whether applying the policy is reasonable in the circumstances.
Indirect discrimination occurs when:
- there is a requirement or condition which is applied to the workplace with which people without the disability are more likely to comply;
- the person with the disability cannot comply; and
- the requirement is unreasonable in the circumstances of the person with the disability.
An example of indirect discrimination is a purchasing freeze on new equipment due to budgetary constraints. A purchasing freeze may mean that employees are required to comply with a condition that they perform their job requirements without needing new equipment. This condition may mean that a person with limited use of his or her arms is unable to obtain voice activated software. This may result in that person being unable to perform the work requirements and have training and promotional opportunities. It is absolutely essential that all budgets make realistic allowance for any extra costs associated with making adjustments and that employees with disabilities are not subject to negative management responses by being told there is no money. Budgeting for equal opportunity must be integral to all Departmental programs and policies. Any standard rule which deals with budgeting matters will need review.
The difficult aspect of indirect discrimination is that the common response of employers is that they are not being discriminatory because their policy applies to everyone. The point is whether the policy has a disparate affect on a person with a disability and whether it is reasonable to maintain that policy in relation to that person. It will not be sufficient for management to say if an exception is made for one person then they will need to make one for everyone. The fact is the law requires that management not discriminate against people with disabilities and other people must accept that management must make such reasonable adjustments.
Although refusing to allow a person with a disability to have an advocate would probably not constitute disability discrimination, management should appreciate how difficult it can be for people with disabilities to approach management about disability issues. Unless there is an extremely positive attitude towards equal opportunity in the work place, people with disabilities will often be concerned that management will reject their proposal for adjustments and that they will be further disadvantaged. Allowing a person with a disability to have an advocate may assist management to have a clearer understanding of the disability issues.
In conclusion, I would just like to say that frequently the attainment of equal opportunity for people with disabilities is more about processes than cost. There are, however, times when equal opportunity costs and money has to be found. The Bill has put a value on diversity which suggests a commitment which goes beyond responding to legal requirements. I hope diversity is valued generously and that you personally commit yourselves to achieving a discrimination free environment and that you address specifically the needs of women with disabilities.