Age and disability discrimination grounds — federal amendments

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Age and disability discrimination grounds — federal amendments

Amendments to the federal Disability Discrimination Act 1992 provide for an explicit duty on employers to make reasonable adjustments for people with disabilities. In addition, the amendments impact on age discrimination — amending the Age Discrimination Act 2004 to remove the ‘dominant reason’ test, so widening the application of this ground.

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Amendments to the federal Disability Discrimination Act 1992 provide for an explicit duty on employers to make reasonable adjustments for people with disabilities. In addition, the amendments impact on age discrimination — amending the Age Discrimination Act 2004 to remove the ‘dominant reason’ test, so widening the application of this ground.
 
The amendments will make it easier for employees to bring discrimination complaints. However, there is now an ‘inherent requirements’ defence for employers against disability discrimination.
 
The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009, introduced into Federal Parliament in 2008, received Royal Assent on 8 July 2009.
 
Underlying the amendments were key recommendations the Productivity Commission made in its 2004 report on federal disability law.
 
Unjustifiable hardship — defence
 
The amendments also extend the Act's ‘unjustifiable hardship’ defence to all unlawful discrimination on the ground of disability (except harassment and victimisation). It clarifies the matters to be considered when determining unjustifiable hardship and makes clear that the onus of proving ‘unjustifiable hardship’ falls on the person claiming it.
 
Indirect discrimination
 
The definition of 'indirect discrimination' has been changed so that there is now a need to prove that the condition or requirement imposed would disadvantage someone with the same disability. They also shift the onus of proving the reasonableness of a requirement or condition to the person who imposed it.
 
Inherent requirements
 
The amendments extend the 'inherent requirements' defence available to employers to most employment contexts — including the terms and conditions on which employment is offered or provided.
 
The matters to be taken into account when determining whether the employee is unable to carry out the inherent work requirements are clarified.
 
Age discrimination
 
On age discrimination, the new legislation amends the Age Discrimination Act 2004 to remove the 'dominant reason’ test.
 
This means that discrimination occurs if a person's age is just one of the reasons for taking discriminatory action that disadvantages them.
 
Name change
 
The legislation changes the name of the Human Rights and Equal Opportunity Commission to the Australian Human Rights Commission.
 
Complaint
 
In addition, the legislation extends from 28 to 60 days the period in which a person can take a complaint to the Federal Court or Federal Magistrates Court after a complaint is terminated by the Commission.
 
The legislation received Royal Assent last Wednesday, 8 July 2009.
 
Details
 
Details on the legislation are available on the ComLaw website
 
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