VIEWS: 16 PAGES: 25 POSTED ON: 8/4/2010
Equal Time Summer 2007-08 page 1 of 25 Equal Time Newsletter of the Anti-Discrimination Board of NSW Number 71 Summer 2007-08 Contents From the President ............................................................................................................................. 2 Breastfeeding amendment ................................................................................................................ 4 Anti-Discrimination Amendment (Breastfeeding) Bill 2007 .......................................................... 8 Training Calendar 2008 ...................................................................................................................... 9 Celebrating our anniversary ........................................................................................................... 10 Photo competition winners ............................................................................................................. 12 Celebrating 30 years ........................................................................................................................ 13 Disability discrimination and the ADA .......................................................................................... 15 Disability adaptation: not so hard ................................................................................................. 19 Community events ........................................................................................................................... 21 Conciliations ..................................................................................................................................... 23 The Anti-Discrimination Board of NSW ........................................................................................ 25 Equal Time Summer 2007-08 page 2 of 25 From the President The Anti-Discrimination Board’s Annual Report for 2006–07 was presented to parliament by Attorney General John Hatzistergos, on 29 November 2007. Board President Stepan Kerkyasharian reports that the Board celebrated 30 years of anti-discrimination legislation in NSW and had a stable and successful year. 2007 marked the thirtieth anniversary of the Anti-Discrimination Act, which came into force on June 1 1977. The Act pioneered anti-discrimination legislation in Australia, and remains a powerful tool for addressing discrimination, harassment and vilification in NSW. The Anti-Discrimination Board is the organisation established by the Act to educate the community about their rights and responsibilities under anti-discrimination law, handle complaints of discrimination, and where appropriate, advise the government on discrimination matters. The Board has continued to do this effectively in 2006-07. The Board‟s education service has maintained its excellent work, with a variety of services and events targeted at a very wide range of sectors in the community. Our self-funding training service for employers and service providers continues successfully due to the excellent reputation of our training staff for providing interactive sessions tailored to the needs of specific employers. Along with our regular seminars and in-house training services, we also provided an information session on the relationship between discrimination law and the federal government‟s Work Choices legislation to ensure that employers understood their continuing obligations under anti- discrimination law in NSW. Our community education service continued to work with groups that have been identified as being particularly vulnerable to discrimination. As well as our usual networking, community training and displays, this year we ran further training for members of the African community, provided education for people with brain injury, and ran a highly successful art competition which culminated in an award ceremony at Parliament House in April. It was very heartening to see the spirit of community harmony that the children demonstrated in their entries, and the creative ways they expressed their vision. Our Aboriginal and Torres Strait Islander team provide an important and accessible service for Aboriginal and Torres Strait Islander people, in answering enquiries, providing strategies for addressing discrimination, handling complaints and educating their community. The team has been particularly effective in partnering with other agencies to provide clear and comprehensive information covering a range of jurisdictions. As accommodation continues to be a major area of discrimination for Aboriginal people, the residential tenancy seminars the team conducted for real estate agents with the Office of Fair Trading are of particular significance. The formal complaints we received were of a similar number and breakdown to last year, apart from a rise in complaints of race discrimination. This may reflect an increase in race discrimination, and/or an increase in willingness to report discrimination, which in turn may reflect our efforts to educate vulnerable communities about their rights. The Board will continue to monitor developments in this area. Complaint handling staff have continued to achieve excellent results in finalising complaints, with no backlog and this year‟s files finalised within an average of 5.5 months. There was another significant increase in the number of complaints resolved at or after a conciliation conference, which we believe may result from the improved time taken to deal with complaints – the parties are more responsive to resolution when the issues are still immediate, and there is a better opportunity to make changes. The Board has achieved a great deal in since 1977, and there is far greater awareness about discrimination and harassment than there was 30 years ago. However, the Board‟s enquiry staff still hear stories daily which make it clear that not everyone in NSW respects the right of all people to live free of discrimination. I therefore look forward to achieving still more in the future. Equal Time Summer 2007-08 page 3 of 25 My thanks to all Board staff for their professionalism and commitment, including the invaluable support staff who facilitate our work. Thanks also to the Statutory Board members for their usual wise guidance throughout the year. Equal Time Summer 2007-08 page 4 of 25 Breastfeeding amendment The Anti-Discrimination Act 1977 has been amended to strengthen the prohibition on discrimination against women who are breastfeeding It’s official! Discrimination on the ground of breastfeeding is now officially unlawful discrimination on the ground of sex. Along with pregnancy, breastfeeding has long been considered ‘a characteristic that appertains generally to persons of a particular sex’. A recent amendment to the Anti-Discrimination Act makes it clear. Under the new law, ‘breastfeeding’ is defined as including the act of expressing milk. Pregnancy According to one study, more than one in five pregnant workers encounter at least one „difficulty at work during their pregnancy: • 9% received negative or inappropriate comments • 9% missed training and development opportunities • 7% missed opportunities for promotion 1 A range of issues have been raised in cases before the courts and tribunals. Some employers, faced with a pregnant employee, have actively tried to „persuade‟ her to leave. This is despite the many financial benefits of keeping a valued employee in a job: loyalty, commitment, retention of experience and expertise, training investment, avoidance of recruitment costs and gaining „preferred employer‟ status. Employers must treat pregnant women the same as they would any other employee unless there is a legal reason to treat them differently. If they normally supply employees‟ uniforms, for example, they should supply a larger size to a pregnant employee if necessary. They should not transfer a pregnant woman to a job „out of sight‟ against her will, or to a „safer‟ job unless there are real medical or safety issues for doing so. They must not treat women whom they think are likely to become pregnant less favourably, either. Unfortunately, many young women report less favourable treatment when, for example, they marry. Under NSW law, an employer does not have to employ someone who is pregnant at the time of the job interview. In most cases, however, this is unlawful under federal law Bad attitudes In one case2, a pregnant hairdressing apprentice claimed her manager‟s attitude changed when she became pregnant: criticising; setting menial tasks; and so on. The real difficulty, however, was her manager‟s decision that she could no longer work in one salon. She was required to travel to different salons from day to day. As her pregnancy progressed, her obstetrician gave her a medical certificate stating that she could only do 8-hour shifts. The manager ignored this and required her to work 12-hour shifts. She was forced to leave her job. The Queensland Administrative Decisions Tribunal found that she had been treated less favourably because of her pregnancy and she was awarded $9,257.50 for humiliation, distress and lost wages. Another case3 concerned a teacher who lost her job-share position as registrar at a private school, when the school decided the arrangement wasn‟t working. Equal Time Summer 2007-08 page 5 of 25 The registrar‟s job was advertised and filled as a full-time position. The woman applied, and was willing to work full-time, but did not get the job. The Queensland tribunal found that the decision that the Registrar‟s position should be full-time was genuine, based on operational requirements, and not discriminatory. The tribunal was satisfied, however, that the real reason for refusing her the job was because of her parental responsibilities and pregnancy and this was discriminatory. It also found that it was unreasonable to require the woman to work full-time or lose her job. It was also irrational to refuse to offer her a teaching job when many were available for which she was qualified. Instead, the school had directly discriminated against her because she was offered a low status, low paid job because she was pregnant. The woman was awarded $42,250. Pregnancy is not an illness Maybe not, but the Federal Magistrate‟s Court found that Qantas discriminated against a flight attendant by refusing to allow her to access her sick leave on the grounds that she was pregnant rather than sick 4 . Flight attendants have to stop flying at a certain stage of their pregnancy due to the potential radiation danger. In this case there were no ground-based jobs at an equivalent salary level, so the woman asked to use her sick leave. Qantas said she must accept a clerical position on offer or go on unpaid maternity leave. The employee successfully argued that Qantas‟ refusal of her sick leave claim meant that she was treated less favourably than another hypothetical employee who was not pregnant but was also unable to perform flying duties by reason of a medical certificate. Accommodating the needs of pregnant employees Employers need to have in place appropriate policies for dealing with the needs of pregnant employees. A woman who was seven months pregnant asked for „light duties‟ because she was having trouble coping. 5 She was told that there were no temporary positions for her to fill, and if she could not do her job, she would have to take leave. The tribunal found that there was no direct discrimination. The woman was not treated less favourably than other employees who needed to be on light duties because of her pregnancy. The tribunal, however, considered whether or not she had been indirectly discriminated against. It had to decide if requiring her to take leave if she couldn‟t do her job was reasonable and whether a substantially higher proportion of men could comply with such a requirement than women in the late stages of pregnancy. The tribunal found that, on the face of it, the requirement was reasonable. In all the circumstances, however, it was not reasonable. It pointed to a lack of written policies to deal with requests such as Ms Jordon‟s, the lack of any training as to how the request should be handled; and no system for exploring options. The Tribunal awarded the woman $7,500 for having to take leave before, rather than after her baby was born. After birth Mothers are entitled to return to work after maternity leave. If their old job is not available, they are entitled to expect that they will be offered something comparable in terms of such things as salary, status, or responsibilities. One woman agreed to return to a „different but comparable‟ role. 6 She was, however, placed in an inferior job with no budget, less responsibility, and no line management responsibilities or development opportunities. She later moved to better position, but it still carried a loss of status. She claimed that this was sex discrimination Equal Time Summer 2007-08 page 6 of 25 The magistrate agreed that she had been discriminated against on the ground of sex. He found that she was treated less favourably than people who took leave for other reasons. She was awarded $10,000 plus an apology. Carers’ responsibilities It is unlawful to discriminate against a person because they are the prime carer for a family member, including a child, grandchild, parent, grand parent, partner, sibling or any of those relatives of a sibling. A carer is also entitled to „reasonable accommodation‟ for their caring responsibilities. A carer can be male or female, but accommodations are often sought by mothers returning from maternity leave. In a recent case7 an employee returned to work after maternity leave to find that her job had been divided into two positions. She was given the more junior role. The senior role included most of her previous responsibilities. The employer claimed that the senior role was given to the better candidate. The Tribunal did not believe this because: • It being the job she had held, it was not sensible to give it to someone else • The manager had expressed concern about how women with children managed their time. • He had told the woman to spend as much time as possible with the baby • He had sent an email to other employees after her return saying „Please welcome Sally back to the office and if she s p e l l s e v e r y t h i n g o u t when talking to you, please be patient‟. The Tribunal was satisfied that she did not get the senior job because of the sales manager‟s beliefs about the effect of childcare responsibilities on performance. She was awarded $19, 685 A woman who is returning from maternity leave does not have an absolute right to return part-time. The carer‟s responsibilities ground, however, entitles her to expect that her employer will give proper consideration to the question of whether or not this is possible. A manager and long term employee, sought to return to work part-time after her maternity leave. Her request was refused. Her employer insisting that the job was full-time and that they had no obligation to assist her to manage her personal affairs. She offered to work on the three busiest days of the week and to be on standby on the other two. The employer reiterated its refusal without negotiation. The woman succeeded in her claim of discrimination on the ground of carer‟s responsibilities, pregnancy and gender. The tribunal found that her employer had not given due consideration to her request and that requiring her to return full time was not reasonable in all the circumstances. She was awarded $16,385 for loss of income, stress and humiliation. Only women have babies Finally, since only women have babies, discrimination against a woman because she is pregnant (or could become pregnant), or because she is breastfeeding, is sex discrimination. The breastfeeding amendment specifically states that it is not discrimination against men to make particular arrangements for breastfeeding women! 1 2 3 Equal Time Summer 2007-08 page 7 of 25 4 5 6 7 8 . Equal Time Summer 2007-08 page 8 of 25 Anti-Discrimination Amendment (Breastfeeding) Bill 2007 The was passed by the NSW Parliament on 24 October 2007. The Hon. Tony Kelly moved that the Bill be read a second time and sought leave to have the second reading speech incorporated in Hansard. “This bill provides for amendments to the Anti-Discrimination Act to remove any doubt that discrimination on the ground of breastfeeding is unlawful. 2007 marks the 30th anniversary of the Anti-Discrimination Act. Thirty years ago, the New South Wales Parliament moved to outlaw discrimination on the grounds of race, sex and marital status in the areas of employment, the provision of goods and services and accommodation, and race discrimination in education. Since then the New South Wales Parliament has responded to deal with other forms of discrimination. The Anti-Discrimination Act now applies to discrimination on many grounds, including age, religion, disability, carers‟ responsibilities, pregnancy, homosexuality and transgender status. Discrimination on these grounds is rendered unlawful in the areas of employment, State education, goods and services, accommodation and registered clubs. Both direct and indirect discrimination are against the law. Honourable Members, the bill before the House seeks to further enhance the coverage of the Anti- Discrimination Act by removing any doubt that discrimination on the ground of breastfeeding is unlawful. Discrimination on the grounds of a person‟s sex or a characteristic that pertains to a person of that sex, or is generally imputed to a person of that sex, is already unlawful under the Anti-Discrimination Act 1977. Pregnancy is specifically cited as a characteristic that appertains generally to women. This bill will insert a new provision into the Act to make it clear that breastfeeding is also a characteristic that appertains generally to women. The bill also provides that breast-feeding includes the act of expressing milk. The bill also makes it clear that a person is not to be treated as having unlawfully discriminated against a man on the ground of sex merely because that person grants a woman rights or privileges in connection to breastfeeding. It is timely for New South Wales to clarify the law in this area. There is now considerable evidence to suggest that increasing levels of breastfeeding will bring important benefits for the health of the Australian community. Clearly prohibiting discrimination on the grounds of breastfeeding will ensure that women who choose to breastfeed are protected from any discriminatory conduct which may impact on that choice. In 2003 the World Health Organisation and UNICEF jointly endorsed their Global Strategy for Infant and Young Child Feeding, which drew attention to the need to provide facilities for breastfeeding women to be able to engage in employment outside the home, while continuing to breastfeed. Enacting legislation to remove any doubt that discrimination on the grounds of breastfeeding is unlawful will make an important contribution to achieving this global goal. Honourable Members, these amendments will provide breastfeeding mothers with the protection of the law, helping to ensure that children in this State are given the best start in life. I commend the bill to the House.” Equal Time Summer 2007-08 page 9 of 25 Anti-Discrimination Board of NSW Training Calendar 2008 Seminars Case law update EEO for CEOs Grievance handling skills Grievance management and resolution skills (2 days) Implementing EEO Harassment and bullying prevention Issues for small business Managing psychiatric disabilities Recruitment and termination Skills for Contact Officers For more information on our training program visit: http://lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_employment_seminars To register for courses contact Milly Stylli on (02) 9268 5530 or 1800 670 812 or download the brochure from our website In-house training programs The Board also provides an extensive series of training programs designed to be delivered in-house. We come to you! We can design and deliver a program specifically for your organisation and industry. Our training sessions are highly interactive and use a range of scenarios, exercises and activities to stimulate interest and discussion. Our in-house training sessions range from a two-hour awareness program for non-supervisory staff to one or two-day sessions for senior managers and supervisors. All sessions are competitively priced with non-supervisor two-hour sessions starting at $44 (+GST) per participant and full-day sessions for managers starting at $140 (+GST) per participant. The fee for our on-site training programs also includes reviewing your policies and procedures, all preparation and delivery time, and publications for each participant. For more information please call the Manager Education Services, Sharmalee Elkerbout, on (02) 9268 5520 or 1800 670 812. Equal Time Summer 2007-08 page 10 of 25 30 years of the Anti-Discrimination Act Celebrating our anniversary The Anti-Discrimination Board of New South Wales celebrated and examined 30 years of Anti-Discrimination law in NSW in 2007 with a variety of events. The formal celebration was an evening ceremony at NSW State Parliament on 25 October 2007 attended by ministers, judges and representatives of the social justice community in NSW. The evening celebrated the historic achievement with speeches from Attorney General, John Hatzistergos, Magistrate Nancy Hennessy of the Administrative Decisions Tribunal and President of the ADB, Stepan Kerkyasharian. Speakers analysed the history and progress of discrimination law in NSW and commended the Act and the work of the staff of the Board in helping protect people in NSW from discrimination. There was a moving performance by young singers from Bankstown Council‟s Talent Advancement Program and an exhibition featuring case studies, excerpts from the Act and entries in the 30th Anniversary of the Anti-Discrimination Act photo competition. The second event held on 30 October was a forum on the history and future of the NSW Anti-Discrimination Act. The forum was co-hosted by the NSW Anti-Discrimination Board and the Koori Centre of Sydney University. The Forum featured experts in discrimination law and Aboriginal issues who examined the impact of 30 years of the NSW Anti-Discrimination Act. The first part of the forum featured experts in law and human rights, and the second part of the program featured accounts of historical and contemporary racial discrimination against Aboriginal and Torres Straight Islander people. The Panelists included the first lawyer at the ADB in 1977, Chris Ronalds SC, as well as current and past Board members and Aboriginal leaders. Speakers analysed the current Act, which was such a pivotal piece of watershed legislation in 1977. Some speakers expressed dismay that the Act has been overtaken by more progressive legislation in other states and countries and bemoaned the lack of progress in NSW in the past decade. Chris Ronalds SC, barrister and the first lawyer at the ADB in 1977, gave the background of the original launch of the Act. Her anecdotes about the early days of the Board were a colourful reminder of how revolutionary the Act was in 1977. She said it was the first piece of legislation in the world to contain the term sexual harassment, and they had underestimated how much media attention the Act would receive. The Act made front page headlines in the tabloid press and drew the ire of conservative commentators. President of the Pride History Group Ken Davis gave an entertaining account of NSW in the 70s and early 80s, when discrimination against homosexuals was an even larger problem than it is today. His involvement in the first Mardi Gras in Sydney, which was effectively a protest march, was a reminder of just how far NSW has come in homosexual rights, and a reminder to keep going. Principal Solicitor of the NSW Disability Discrimination Legal Centre, Joanna Shulman, gave insights into working at the coalface of disability discrimination and discussed how far NSW still has to go, and issues for the future, especially an ageing population. Former board member and Minister for Fair Trading, Youth and Volunteering, the Hon. Linda Burney, bemoaned the fact that Aboriginal women experience poorer health outcomes and shorter life expectancies than all other Australians. Chief Executive Officer of the NSW Native Title Services Warren Mundine spoke of the discrimination his family had experienced. He explained how his father kept his dog tags (government issued identification tags) as a reminder of discrimination. Mr Mundine also spoke of his experience of being refused rental Equal Time Summer 2007-08 page 11 of 25 accommodation by a real estate agent when his wife took a university post in New England, NSW. Tony McAvoy, an Aboriginal barrister in NSW, gave a comparative analysis of South African apartheid and Australia‟s treatment of Aboriginal people. The Aboriginal segment of the forum illustrated how recently severe discrimination against Aboriginal people was a part of society. The Freedom Rides bus tour of northern NSW towns in 1965 helped raise awareness of discrimination against Aboriginal people but racial discrimination against Aboriginal people remains a problem today. In our third event, a human rights theatre performance bought the community together in the centre of Sydney to commemorate 30 years of NSW Anti-Discrimination Act. The event in Martin Place on 23 October 2007 featured the Social Justice Theatre Troupe showcasing the story of human rights and equality. The theatre troupe advocated a message of anti-discrimination through their performances, including Punch and Judy. Passers by enjoyed 300 servings of Anniversary chocolate mud cake served on anti- discrimination postcards while they chatted with Board staff and collected postcards and fact sheets. President of the Anti-Discrimination Board, Stepan Kerkyasharian, delivered a speech on the importance of the Anti-Discrimination Act. He said the Anti-Discrimination Act was a groundbreaking piece of legislation when it was introduced in 1977 that had undergone major changes to enhance it since its enactment. „The Act today makes it illegal to discriminate against someone on the basis of their sex, disability, race, pregnancy, age, homosexuality, transgender status, marital status or carer‟s responsibilities,‟ he said. „It remains crucial to addressing inequalities in society.‟ Equal Time Summer 2007-08 page 12 of 25 30 years of the Anti-Discrimination Act Photo competition winners The Anti-Discrimination Board of New South Wales is pleased to announce the joint winners of the Anti- Discrimination Act 30th Anniversary Photo Competition! Equal first place went to Arthur Roy of Toukley for his series on multiculturalism and harmony and to Cassandra Stericker of Ermington for her series showing her son enjoying the Liberty swing in his wheelchair. The photo competition was open to all NSW residents to send in photos depicting equal rights in our community. „The photo competition allowed people of all ages across the state to show what anti-discrimination meant to them after 30 years of legislation,‟ President of the NSW Anti-Discrimination Board Stepan Kerkyasharian said. „Photography is a wonderful way to visually communicate the ADB‟s message of equality and non- discrimination,‟ he added. Playing Together In Harmony.) „This photo was published in the local Bankstown Council Newsletter to the delight of the parents. The idea is that the children can learn at an early age to accept other cultures and their members as equals and hopefully when they become adults prejudices and discriminatory feelings will have vanished.‟ The Liberty Swing „These are a couple of photos of my son enjoying the Liberty swing. He can now enjoy the park like other kids.‟ Equal Time Summer 2007-08 page 13 of 25 30 years of the Anti-Discrimination Act Celebrating 30 years Speech by Magistrate Nancy Hennessy of the Administrative Appeals Tribunal at the celebration of 30 years of the Anti-Discrimination Act held at Parliament House on 25 October 2007 The views expressed in this article are those of the writer and not necessarily those of the President, Board members or staff of the ADB Attorney General, distinguished guests. It is a privilege to be invited to speak to you this evening. Many of you have worked hard to promote human rights over the last 30 years. You have worked in government and in non-government organisations, many on a voluntary basis, and you can be justly proud of your achievements. When the Wran government brought in the Anti-Discrimination Act on 1 June 1977, it was one of the first statutes of its kind in Australia. The Act provided an accessible civil remedy for victims of discriminatory conduct. Many ground breaking decisions were made: female iron workers at BHP had a victory in relation to discriminatory redundancy provisions, Melinda Leves was given access to the same choice of subjects as her twin brother who went to a boys high school and access to a shopping centre in Wollongong was improved for people using wheelchairs. Since 1977, the Act has been amended at least 53 times. Grounds such as age discrimination, transgender status and carer‟s responsibilities have been added. The Act has been expanded to cover vilification and harassment on some grounds. More recently, the procedures for complaining to the Board and having a case heard in the Tribunal have been overhauled. These changes have extended the protection our society gives to its most vulnerable and powerless citizens. The Act has helped ensure that everyone is treated equally, regardless of irrelevant characteristics such as race, sex, disability or homosexuality. But formal equality is only the first step in eradicating discrimination. It is not enough to compare people with a disability, for example, with people without a disability and treat them the same. Those of us who work with the Anti-Discrimination Act on a regular basis know that it is much harder to achieve substantive equality so that everyone is on a level playing field regardless of who they are. In 2003, the High Court handed down a decision involving Daniel, a high school student from New South Wales, with intellectual and other disabilities caused by brain damage. He exhibited some violent behaviours and was expelled from school. The High Court interpreted the federal Racial Discrimination Act, which is similar to the NSW Act, as guaranteeing only formal equality. All that was required of the school was to treat Daniel in the same way as it would treat any other student who exhibited violent behavi our. Despite the fact that Daniel‟s behaviour arose from his disability, the High Court found that there was no positive obligation on the school to accommodate him. This case highlights the inadequacy of the current definition of discrimination. The problem applies not only to people with disabilities but to people with carer‟s responsibilities and those who have been subjected to historical disadvantage such as Aboriginal people. It is not enough to treat these people in the same way as we treat healthy, white people without family responsibilities. We should think about re-defining discrimination and imposing an obligation to reasonably accommodate people who are disadvantaged in these ways. We also need to think about simplifying and extending the law in other ways. Muslims, who are one of the most maligned groups in Australian society, are not squarely protected by the Act. Religion as a ground is not covered and the term „ethno-religious‟ is difficult to understand and apply. Equal Time Summer 2007-08 page 14 of 25 In 30 years, the Act has regularly been improved and expanded. Recent amendments such as adding breastfeeding as a distinct ground of discrimination, have strengthened the protection the Act gives to women of child bearing age. Our challenge is to ensure that in the next 30 years we achieve an even greater measure of substantive equality so that everyone has access to the same benefits and protections as the majority enjoys. Equal Time Summer 2007-08 page 15 of 25 30 years of the Anti-Discrimination Act Disability discrimination and the ADA Principal Solicitor of the NSW Disability Discrimination Legal Centre (DDLC) Joanna Shulman spoke at the 30th anniversary forum on the history and future of the NSW Anti- Discrimination Act held on 30 October 2007. The views expressed in this article are those of the writer and not necessarily those of the President, Board members or staff of the ADB DDLC is a small community legal centre which specialises in providing services in discrimination law, advice and referral to people with disabilities in NSW. When discussing the development of disability discrimination law, it is tempting to search for a startling case, which had a widespread effect on a large number of people with disabilities and thus illustrates the invaluable nature of the (ADA). Alas, such a search will almost invariably be in vain. After fruitless searching one realises why; the ADA is a piece of legislation which often results in what the outsider would classify as „small differences‟ to the lives of the marginalised, but which in fact result in a significantly improved quality of life for these people. Recently DDLC assisted a woman who because of arthritis and her age could not open the heavy toilet doors at her local Westfield, and had stopped doing the grocery shopping because of it. We provided advice to a man who had been sent for psychological testing by his employer because his employer had heard „on the grapevine‟ that he suffered from depression. We filed a complaint for the parent of a child with autism seeking to negotiate with his local school around a plan for his future education that would aim to maximise his participation in the class room. None of these cases will ever become „that case‟ but they will end up making significant differences to these peoples lives, and provide illustration of the reason why the ADA is to be applauded as a piece of legislation. Growth of disability discrimination law It was not until the Act‟s fourth birthday in 1981 that the ADA was amended to include physical disability as a ground of complaint. Intellectual impairment followed shortly after in 1982. For 12 years disability discrimination was dealt with under these two separate heads of physical impairment and intellectual impairment. However, there were definitional problems in this version of the Act. These problems arose because physical and intellectual impairment were defined as „defects or disturbances in the structure and functioning‟ of the body or the brain. To come within the definition, people had to prove they had a „defect‟ which limited them substantially in an area of their life. In 1994, ground-breaking amendments were made to the ADA, (enacted by the Anti-Discrimination (Amendment) Act 1994 (NSW)) which included the addition of age discrimination and the extension of race definition and marital status protection. It also represented a true „coming of age‟ for disability discrimination law as the definition of disability was expanded to mirror the definition contained in the (Cth). These amendments also paved the way for a „representative body‟ to lodge complaints on behalf of a person or group of people. Ten years after these amendments the accessibility of the ADA for people with disabilities was increased further. In October 2004, a number of changes which were largely based on the comprehensive 1999 NSW Law Reform Commission‟s Review of the Act were introduced. These changes were: • An extension of the limitation period for lodging a complaint from 6 to 12 months; • A flexible means to make and lodge a complaint, and; Equal Time Summer 2007-08 page 16 of 25 • Most importantly, the definition of discrimination on the ground of disability was expanded to include discrimination on the basis of characteristics of disability – such as being palliative, using therapeutic devices which aim to alleviate the effect of a disability and using interpreters. The scope of achievements of what is now the ADA is borne out by empirical data. The Anti Discrimination Board in the past decade has handled over 2,500 formal complaints of disability discrimination, as well as many more enquiries that do not lead to formal complaints. Disability discrimination complaints now represent one in five of all complaints lodged with the Board. In 2001–02 the Board received 332 disability complaints, making up 20.4% of all complaints lodged. The opportunity to pursue complaints with the Board has allowed people with disabilities to assert their fundamental right to non-discrimination and achieve positive results for themselves and others. The ADB should be congratulated on this achievement. Despite the scope of these accomplishments, it should be noted that there are some other reasons why the search for “that case” will almost always prove fruitless. This is because there are gaps and some structural issues within the Act which need to be addressed. Gaps in Anti-Discrimination Law Volunteers with Disability Many people with disability who are unable to work but want to make a valuable contribution to society, choose to do volunteer work. However, if they do so and are harassed and discriminated against because of their disability, they are left unprotected under the ADA. For example, DDLC was recently contacted by a mother who was concerned that her son who has a mental illness and was a volunteer at a local coffee shop, was told, after word circulated that he had in the past been a drug user, that he could not return to work until he had a negative Hepatitis C test. This man was left without any protection under discrimination law, and has now given up volunteer work. Disability Vilification With the passage of the (NSW), New South Wales became the first Australian jurisdiction to pass legislation which makes vilification on the ground of race illegal. The ADA has since been amended to prohibit homosexual vilification, HIV/AIDS vilification and transgender vilification, all of which have been modelled on the original racial vilification provisions. 1, 2 However, there remains no legislative protection against vilification of people with disability. Exemption in relation to drug addiction Another area in which work remains to be done is in relation to the interpretative problems and erosion of protection for people with disabilities created by certain exemptions in the Act. One such exemption arose in 2002 when the Act was amended to state that discrimination in employment on the grounds of disability is not unlawful if the disability relates to the person‟s addiction to a prohibited drug (within the m eaning of the Drug Misuse and Trafficking Act 1985) and the person is actually addicted to a prohibited drug at the time of the discrimination.3 Methadone and buprenophine are excluded from the definition of prohibited drug. Equal Time Summer 2007-08 page 17 of 25 The amendments are described in the 2nd reading Speech of the Anti-Discrimination Amendment (Drug Addiction) Bill to Legislative Council as supplementing the existing provisions in the Act which provide protection for the legitimate needs of employers, and ensuring that our disability discrimination laws are not used in an unintended manner. The inclusion of this provision in the ADA creates more problems than it solves. Firstly, on top of the already existing protection for employers such as the exemptions relating to the inherent requirements of a job 4 and unjustifiable hardship, 5 as well as occupational health and safety legislation, the exemption relating to drug dependency cannot be justified as necessary. Furthermore, this exemption promotes unhelpful stereotypes regarding addiction to prohibited drugs, setting up a polarization between „self inflicted‟ injury versus people who are „genuinely disabled‟. 6 Such a dichotomy is baffling when considered in light of the fact that the exemption relates only to prohibited drugs, and not legal drugs of addiction such as alcohol and tobacco. An analysis conducted in 1998–9 finding that tobacco accounts for the largest share of lost productivity costs (64.3%), followed by alcohol (22.5%), followed by all illicit drugs combined (13.1%).7 Yet only illicit drugs are covered by the exemption, promoting the stereotype that addiction to illicit drugs is somehow a „self-inflicted‟ illness.8 The inclusion of this exemption permits discrimination on the basis of drug dependency in anti- discrimination law. Additionally, this has the potential to make illicit drug users reluctant to seek treatment, because of concerns that their employer could find out about the fact that they are drug user which may lead to discrimination. Looking to the Future In our complaint based system, the onus is on already disadvantaged individual to bring a complaint. Complainants inevitably have to weather the emotional, physical and monetary costs of attending conciliation and the Administrative Decision Tribunal (ADT) in battling the complexities of direct or indirect discrimination. If they end up in the ADT, and are successful, usually they will only receive a very small amount of compensation. Often DDLC advises its clients that the personal cost of proceeding to the ADT is not worth the result. We need to re-think the way we have organized this system. Another obvious need to be addressed is that of the depleted resources of the ADB. It is no secret that since the cuts to funding, the ADB has engaged in very little inquiry work and so many systemic discrimination issues are left untouched. Conclusion We are hopeful that at the 60th birthday of the ADB, DDLC can stand up and congratulate the ADB on changes to the above areas. Hopefully, DDLC will able to continue to point to how anti-discrimination law Equal Time Summer 2007-08 page 18 of 25 has led to little victories for people with disability. It would be great if we were able to point to some larger victories also. Equal Time Summer 2007-08 page 19 of 25 Disability adaptation: not so hard Adapting to working with a person with a disability has proved to be a manageable challenge for the owner, staff and customers of Wilbartec, a mechanical engineering consultancy in Wollongong. Matt Lightfoot began working at Wilbartec after completing a Diploma of Engineering at TAFE. He did well in this course and has subsequently began studying mechanical engineering at Wollongong University. When Matt started at Wilbartec he had some hearing, but he had a tumour which would eventually have to be removed. This was delayed as long as possible while he was studying, as he would most likely be completely deaf after the surgery. The company had not known about his hearing problems when he began work, so Matt thought that he would not be able to stay on once the operation became unavoidable. He approached the owner, Lothar Wilkens, to resign. „Two years ago Matt came to me very upset and said goodbye,‟ Lothar said. „But I said we shouldn‟t pre- empt what will happen. He is very bright and intelligent and switched on, and I didn‟t want to lose him if possible. I couldn‟t promise anything, as we are only a small company, but I encouraged him not to give up without a fight.‟ Matt was very happy, as this was not what he had been expecting at all. „I told him to come back to work after the surgery and see what happened,‟ Lothar said. „And in fact it was amazing how easy it was.‟ Matt has learned to lip-read, and can understand a large percentage of what is being said as long he can see people‟s mouths as they speak. Lothar says it was a bit of a culture shock at first to rem ember to face towards Matt as they were speaking, but they soon got used to it. It also helps if people speak relatively slowly and enunciate their words more than usual. Lip-reading can be tiring, particularly in a group situation, so the company generally has a few short discussions on a project rather than one longer one. They bought a whiteboard which they can use to write up any words that Matt doesn‟t catch, and in non-group situations he can also communicate using SMS, email or written notes. Matt does his share of liaising with clients, and they have all accepted the situation. „I just behaved as normal, and didn‟t tell them in advance‟, Lothar said. „When he goes on site and discusses a job he‟s been working on, they can see he‟s already done a good job, so it‟s not an issue.‟ „I don‟t generally tell them straight out that I am deaf, I look at the way they talk, and if it‟s likely to be a problem then I may ask them to speak more slowly,‟ Matt said. „In fact, people go out of their way to make sure I understand, and the positive response has given me faith in humanity.‟ One client is Tim Starr, the Safety, Quality and Environment Superintendent with MultiServ, which provides services to BlueScope Steel. He says that working with Matt has taught him to be more precise about defining and expressing his requirements, using drawings as an additional aid. There are some safety issues which need to be thought through – for example there are areas where Matt can‟t go on his own, such as where there are overhead cranes or mobile equipment with audible warning signals. However Tim always ensures that someone is organised to accompany him. „We also have to be careful approaching him if he‟s using power tools,‟ Lothar said. „ He can‟t hear you coming, so you need to wait for a good moment and not surprise him.‟ But the most important thing is that Matt is accepted and feels as much a part of the company as everyone else. „We didn‟t take care of him, or treat him differently,‟ Lothar said. „I have always joked around, and I continued to do that, and made the same jokes that we always would. But we do give him the angle grinding to do, because it‟s noisy work and he can‟t hear it!‟ Equal Time Summer 2007-08 page 20 of 25 And for Matt there is huge relief that he can continue with the career he enjoys and has such an aptitude for. „I had an idea that I would have to do what deaf people do, and I was very pleased to discover that I could continue here. I‟ve learned so much, and it would be hard to match it anywhere else,‟ he said. According to the Manager of the Board‟s Wollongong Office, Gerardo de Liseo, disability is a big issue in a heavy industry area such as the Illawarra. Many of the workers are older men who may develop a medical condition or be injured at work. If the person is unable to continue working, this can have a very serious impact, and if they are the main breadwinner in the family it may result in them losing their house. „The ramifications are enormous at a social and personal level,‟ Gerardo said. He says the key is for employers to follow Lothar Wilkens‟ example and adopt a flexible and positive approach to people with a disability in the workplace. „As the experience at Wilbartec has shown, there are often simple adaptations or changes that may enable a person to keep doing the essential requirements of their job,‟ he said. „It works at Wilbartec because of Lothar‟s positive attitude,‟ Gerardo said. „Too often, employers make unjustified assumptions about what a person with a disability can or can‟t do, or how difficult it may be to overcome perceived problems. This means they may lose a valuable and perhaps very experienced employee, with all the costs that this can involve.‟ Equal Time Summer 2007-08 page 21 of 25 Community events International day for People with Disabilities Business Centres from the Attorney General‟s Department participated in stalls in the Church Street Mall, Parramatta to highlight International Day for People with Disabilities. Claire Williams, Community Education Officer, represented the Anti-Discrimination Board of NSW and other stalls were hosted by the Public Trustee, Registry of Births Deaths & Marriages, LawAccess, Diversity Services and community disability service providers. This is an annual event organised by the Parramatta City Council which this year featured guest speaker, Graeme Innes, Commissioner for the Human Rights and Equal Opportunities Commission (HREOC). A highlight of the day was a demonstration of Blind Cricket. A number of deaf clients approached the ADB stall and mentioned they had no access to TTY telephone services and preferred to text enquiries to organisations via their own mobile phones. However most organisations do not provide a mobile phone number for text enquiries and this is a problem. It may require organisations to rethink the way they provide their services for deaf and speech impaired clients. A TTY is a special device that lets people who are deaf, hearing impaired, or speech-impaired use the telephone to communicate, by allowing them to type messages back and forth to one another instead of talking and listening. A TTY is required at both ends of the conversation in order to communicate. The ADB provides the TTY service to its clients The ADB TTY number 02 9268 5522 Bankstown Court open day for Arabic community The NSW Attorney General‟s Department is committed to working with culturally and linguistically diverse communities to create a just and safe society. Bankstown Courthouse opened its doors to the Arabic community on Wednesday 1 August 2007. The Open Day included court tours and a range of seminars, all of which were delivered in Arabic and English. Claire attended on behalf of the Board and delivered two sessions regarding Anti-discrimination law and how to make a complaint; one to senior school students and teachers from Our Lady of Lebanon College, and the other for general community members. Over 70 people attended the Arabic community open day to learn about available legal services, at Bankstown Courthouse on Wednesday 1 August. St George Migrant Info Day Claire attended the St George Migrant Information Day in October 2007. This day was focused on welcoming new migrant and refugee communities in the area, giving them access to settlement information and the services, such as the Anti-discrimination Board, which may be able to assist them. Information stalls, multicultural food and entertainment were provided to celebrate the cultural diversity that exists in the St George community. St George Migrant Resource Centre has an Outreach Service in Hurstville to help with the settlement needs of refugees and migrants. This service is available in two locations (apart from the main centre in Rockdale). The caseworkers provide settlement assistance with housing, Centrelink, health and other issues as well as free information, referral and advice on immigration, education, employment, childcare, and English classes. This service is available to newly arrived migrants and refugees who reside in the St George region. Community sector workers of the future Claire has been involved in training Community Welfare students about the Anti-discrimination Act at both Ultimo and Meadowbank TAFE and social work students at the University of NSW. Establishing this Equal Time Summer 2007-08 page 22 of 25 community network has been a step forward in community capacity building as community sector workers are key to empowering and guiding their clients in making a complaint to the Board. ABILITY INCORPORATED ADVOCACY SERVICE NATIONAL ADVOCACY CONFERENCE VALLA BEACH RESORT, 17–21 OCTOBER 2007 What an amazing event! With over 170 people with disabilities in attendance, this is by far the largest disability conference in NSW. In its 17th year of operation, participants are well versed with the running of the program, and the significance of valuable service provision and client focused promotion of advocacy, presented by staff who willingly give up their time to empower and inform people with disabilities. The participation of services such as the Anti-Discrimination Board, Centrelink, the Office of the Protective Commissioner, Life Activities, and Fishability (just to name a few!) all helped to provide those with disabilities as well as their carers and support workers with invaluable expertise and up to date knowledge about how their services can support them. The encouragement of services such as the Anti-Discrimination Board presenting supportive and interactive information to those with disabilities, has enabled clients to have an awareness of their rights in the community. We would like to extend our thanks to Claire Williams for her time in presenting a well received session, and hope that she can return next year for another successful advocacy conference. Equal Time Summer 2007-08 page 23 of 25 Anti Discrimination Board Conciliations Homosexual Discrimination A branch manager of a community organisation involved in the delivery of health education programs and activities alleged that he was unlawfully discriminated against when its CEO directed him to remove himself from direct involvement in the delivery of one of its services programs. He alleged that this direction had been given to him because he was male and openly homosexual. The CEO denied that this was the reason and asserted that the education program was peer based and as such, should not have been directly facilitated by the branch manager. The organisation asserted that the direction was given to ensure that its programs were delivered in an appropriate manner. They argued that this was particularly important given a number of recent complaints about the program which had given rise to considerations of duty of care to its clients and management of potential associated risks. The matter was resolved when the respondent agreed to provide the complainant with a written reference. Disability Discrimination A registered nurse alleged that his employer unlawfully discriminated against him on the ground of disability in the area of employment when, following his full recovery from a workplace injury, it refused to return him to nursing duties. The matter was resolved after the Board provided notice of the complaint to the respondent and set a date for a conciliation conference. Following notice of the complaint, the parties entered into a deed of release as part of a settlement of the complainant‟s workers compensation matter, a term of which included settlement of his complaint with the Anti-Discrimination Board. Homosexual Discrimination A clerk alleged that his employer unlawfully discriminated against him on the ground of imputed homosexuality in the area of employment and also that it victimised him when it allowed him to be subjected to continued harassment by his supervisor and co-workers. He alleged this harassment included unwelcome comments such as referring to him as „gay boy‟ and „chock topper‟. The clerk alleged that following a complaint to management his supervisor increased scrutiny of his work. The clerk stated that he simply wanted his employer to take action to stop the conduct of these employees. The matter was resolved when the respondent provided the complainant with a written commitment of its support for anti-discrimination, harassment and victimisation and an undertaking to provide training in this area to its employees. Disability discrimination The complainant suffers from polio, which causes her to walk with a limp. She attended training as required by her employer. The training was conducted by an external provider. The complainant alleged that the trainer of the workshop severely humiliated and embarrassed her in front of other workshop participants when he questioned her about what was wrong with her leg in a demeaning manner, and further, that he mimicked the way she walked in front of other participants. The complainant alleged that she was affronted by the trainer‟s conduct, which left her feeling numb and speechless. The complainant was resolved when the complainant accepted a payment of $6,000 in settlement of the matter. Disability discrimination A heavy vehicle driver alleged that his employer had him medically assessed after his involvement in an accident, after which he was permanently removed from his position as driver and demoted to a lesser position. The driver alleged that his removal from driving was not warranted, as the medical assessment failed to reveal any underlying medical condition that was causally connected to the accident. The driver alleged that the accident occurred after he had sustained a micro sleep due to working long hours without Equal Time Summer 2007-08 page 24 of 25 relief. The driver, who speaks English as a second language, says that he incorrectly used the words „blacked out‟ when describing what had occurred in the accident to his employer. He also asserted that there was only minor damage to property caused by the accident. The employer asserted that this was the second occasion on which the complainant appeared to briefly loose consciousness without explanation. It asserted that it had a duty of care to the driver, to its other employees and to the public. The employer asserted that the driver‟s demotion did not result in a loss of wages for the complainant who had suffered no material detriment. The driver alleged that the detriment was a loss of opportunity to work overtime which was more frequently available to drivers. The respondents operations were due to be taken over by a new employer consequently the complainant and all other employees had been made redundant and at the time of the complaint being lodged, were in the process of applying for employment with the new employer. The matter was resolved when the respondent agreed to pay the complainant‟s outstanding medical bills and to calculate all the complainant‟s redundancy payments at the rate of driver. Disability discrimination The complainant has been profoundly deaf from birth, and as a consequence, is also mute. The complaint‟s preferred method of communication is Auslan and he has a limited ability to lip-read. However he is able to read and write in English. The complainant worked for the respondent as a general labourer. The complainant alleged that he had not been given consideration for promotion to the position of leading hand, because he was deaf. He stated that he had worked for his employer for many years but had been provided with few opportunities for advancement. The complainant alleged that the respondent relied too much on informal methods of communication in order to communicate important workplace issues to him. The complainant alleged that the respondent had effectively ignored him when it called him to a meeting at which a co-worker, with many lesser years of experience and skills than he, was appointed to the position of acting leading hand. The complainant alleged that the respondent had treated him less favourably than his co-workers who had been directly involved in the discussion at the meeting, while he was left to wonder what the meeting‟s agenda and discussion was until being told by a fellow worker at the conclusion of the meeting. The respondent asserted that the complainant‟s disability did not have a bearing on its decision to promote the other worker. The respondent asserted that the position of leading hand was a temporary one and that the complainant had been provided with a similar promotion previously. The matter was resolved when the respondent agreed to a number of undertakings including: provision of deafness awareness training to its employees; the provision of Auslan interpreters at important meetings and training; approval of professional development for the complainant to attend a course for supervisors; an undertaking to provide the complainant and his co-workers with the use of various visual aids, including a laptop PC to assist with communication; and, provision of one-on-one training for the complainant, with the assistance of an Auslan interpreter, to explain the employer‟s system of grading and classification of its employees and the available career paths. Equal Time Summer 2007-08 page 25 of 25 The Anti-Discrimination Board of NSW What types of discrimination do we deal with? Grounds Areas Where we are
"Equal Time Summer 2007 08 page 1 of 25 Equal Time Newsletter of the Anti Discrimination"