Disabled job applicants - care needed

Cases

Disabled job applicants - care needed

A physically disabled job applicant has been held to have been discriminated against because there were too many steps for her to climb in order to attend the job interview.

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A physically disabled job applicant has been held to have been discriminated against because there were too many steps for her to climb in order to attend the job interview.

What happened

The job applicant suffered from muscular dystrophy.

The applicant applied for an onboard position. The job ad disclosed no overt physical requirements for the position.

The applicant led evidence that she had asked about access to the place of interview prior to the interview, and had informed the employer that she had a ‘slight mobility problem’. The applicant said that she was told that there were about five steps. The applicant said in evidence that this was important because she would not have been able to manage any more than five steps.

When the applicant attended for the interview, she was not able to access the building because of the number of steps. The taxi driver went into the building and brought out the person who was conducting the interviews.

The applicant explained her difficulty, to which the interviewer replied that she did not think that there was any point in conducting the interview since the ship has a lot of steps. The applicant pointed out that there was a lift on the ship which accessed all levels. The interviewer then arranged for an interview early the next day at accessible premises.

The applicant alleged that at the interview, the interviewer did not bring the applicant’s application nor other papers. The applicant considered that the interviewer did not give her any opportunity to sell herself, and that the interviewer kept referring back to how the applicant would manage the stairs and how strenuous the job was.

The Commission viewed the premises where the initial interview was to have taken place and found that in order to enter the building one would have to climb two single steps, then 12 consecutive steps, and two final steps.

Indirect discrimination found

The Human Rights and Equal Opportunity Commission found that the applicant had been indirectly discriminated against because there was a requirement that the applicant negotiate more than five steps in order to participate in the interview.

Applying the test for indirect discrimination provided in the Disability Discrimination Act 1992(Cth), the Commission found that this was a requirement or condition with which the applicant could not comply, but with which a substantially higher proportion of persons without the applicant’s disability could comply.

The Commission found that the requirement was unreasonable in the circumstances because an interview at accessible premises was able to be arranged the next day.

The Commission did not find any discrimination in the manner in which the interview was conducted, as it could not conclude that the applicant was treated less favourably in the interview because of her disability (W v P Pty Ltd [1997] HREOCA 24 (26 May 1997)).

The applicant was awarded $2000 damages for humiliation plus $130 dollars for additional expenses incurred. But for the fact that the employer took immediate steps, at the initiative of the applicant, to organise a subsequent interview at accessible premises, a greater amount would have been appropriate, the Commission said.

Comment

Employers need to accommodate applicant’s with disabilities when conducting job interviews. A suggested manner of approaching this issue is to ask applicants, prior to the interview, whether they have any special requirements. If so, such requirements will need to be met unless they would impose unjustifiable hardship on the employer.

 

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