What is Discrimination (Part 1)?
An Overview
In NSW, unlawful discrimination (when against a person ‘on the ground of disability’) occurs when one person (‘the perpetrator’) behaves in a certain way towards another person (‘the aggrieved person’) in certain circumstances which the Act regards as being unlawful.
There are two important parts to understanding what is meant by ‘discrimination’:
the behaviours, and
the circumstances in which those behaviours take place.
This article will focus on the behaviours.
The Act describes two different types of behaviours which can be regarded as being discriminatory.
Behaviour #1: Treatment of the Other Person
Where:
because of:
the aggrieved person’s disability, or
the fact that an associate or relative of the aggrieved person has a disability,
the perpetrator treats (or would treat) the aggrieved person less favourably than someone else:
who doesn’t have that disability, or
whose relative or associate doesn’t have that disability,
in the same circumstances (or in circumstances which are not materially different).
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It is important to understand that this type of behaviour includes situations involving a characteristic that either:
appertains generally to persons, or
is generally imputed to persons,
who:
have the type of disability that the aggrieved person (or their relative or associate) has, or
has a disability substantially the same as the aggrieved person (or their relative or associate).
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Examples of a characteristic that ‘appertains generally’ include the fact that a person who has a disability:
relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability,
is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact.
Behaviour #2: Requiring the Other Person to Comply
Where:
because of:
the aggrieved person’s disability, or
the fact that an associate or relative of the aggrieved person has a disability,
the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability (or who do not have a relative or associate who has that disability):
comply, or
are able to comply,
being a requirement:
which is not reasonable having regard to the circumstances of the case, and
with which the aggrieved person does not or is not able to comply.