Some Australians have reported fears that employers may not employ or retain people who have a genetic condition or who are pre-disposed to future disease onset since they are assumed to be less productive; to be more likely to take time off work; and to require higher costs for workers compensation cover or employer-funded health care.However, federal and state anti-discrimination legislation offers some protection in these circumstances.
When can employers lawfully discriminate in employing people? Employers may discriminate when employing people if:
a person can’t do the job because of a current lack of ability;
a person would require special services that would impose unjustifiable hardship on the employer;
a person would be a risk to other workers ; or
one of the other exceptions in the legislation applies.
When are employers prohibited from discriminating? Employers are prohibited from discriminating on the basis of a person’s ‘disability’ or ‘impairment’ when offering jobs, the conditions of appointment, access to training, promotion, transfers, or dismissal. ‘Disability’ or ‘impairment’ includes having a genetic condition, or a predisposition, or carrier status:see Disability Discrimination Act 1992 (Cth) Division 1; Equal Opportunity Act 1995 (Vic) Part 3, Division 1; Fair Work Act 2009 (Cth) ss 153, 195, 351, 772(1)(f). This is discussed more fully in Section 4.
When can employers lawfully request health information? Employers are not legally entitled to ask questions about your health unless the questions are:
directly relevant for the job, for example: to ensure that you can fulfil all the requirements of the job; or
to help protect you and other people from potential occupational health and safety risks in the particular job that might arise from employing people with certain medical conditions. Employers have a legal duty under occupational health and safety legislation, and also the common law, to provide a safe work place for all employees. Similarly, they have to protect the community from potential risks – ensuring that equipment is handled safely and that manufactured products are safe. It should be emphasised, that occupational risks to third parties are very rare, especially the risk from genetic conditions that have a sudden onset or an unpredictable onset (one example of a risky genetic condition in a particular workplace is sickle cell anaemia for a pilot).
Employment and disclosure – do I tell? You don’t have to tell your employer about your gene test results or condition unless it’s relevant to the job or an occupational health and safety risk.However, in many cases telling your employer about your medical condition is a positive move as it may explain why you sometimes have to take time off work. It may also result in changes in your working conditions to help you to continue to work. If you are symptomatic, employers must take reasonable steps to accommodate your disabilities, including altering the environment, allowing time off for medical appointments and treatments, changing work duties, and even allowing you to work part time.
If your employer is not offering any assistance, you may have a legal claim under anti-discrimination workplace relations laws.
What about your privacy? You may be concerned about your employer passing on your medical details to other people without your authority. However, employers, like health professionals and others who hold personal health information about people, are legally bound to keep the information private.The Health Records Act 2001 (Vic) applies to everyone in the public and private sector, and to corporations and private individuals. The Act prohibits disclosure of your personal information without your consent unless there is legal authority for it.For example, information may be disclosed – and in some cases disclosure to a government department is mandatory - where people are a serious risk to themselves or to other people; or in the course of court proceedings relating to a criminal prosecution. However, these cases are rare and if personal information is disclosed in contravention of the Act, you can lodge a complaint with the Victorian Health Services Commissioner, (http://www.health.vic.gov.au/hsc/) under Part 6 of the Act.
Exercising your legal rights regarding employment Informal Discussion If you feel you have been treated unfairly or discriminated against by an employer (potential and existing), the first step is often to talk directly to your employer, supervisor or manager.It may be that the problem can be sorted out in your workplace without you having to take any further action. This may be the quickest and easiest way of solving the problem.
You can also talk to an organisation such as Victoria Legal Aid, a Community Legal Centre, or a trade union, which may be able to approach your employer on your behalf and help fix the problem. Trade unions are there to make sure that their members’ rights at work are protected. They can give you advice about the industry you work in if you are a member. If you don’t belong to a union you can find out which union to join by contacting the Australian Council of Trade Unions. See the Links and Resources section for contact details.
You might not want to approach your employer, supervisor or manager, even with the help of one of these agencies, if they are the people causing the problem. There is no requirement that you do so and, if that is the case, you may need to take more formal steps to exercise your legal rights.
Legal Avenues The law regarding employment is complex. There are federal and state laws on employment, health and safety in the workplace and discrimination. Anti-discrimination laws apply to all employees. It does not matter who your employer is; whether you are covered by an award or agreement in your workplace; or whether you are full time, on probation, casual or part-time. You are entitled to complain about any unlawful discrimination related to your employment. There are also industrial awards and agreements which regulate employment in industries or workplaces that may help to protect you.
Lodging a complaint under anti-discrimination laws You can lodge a complaint under federal or state anti-discrimination legislation (see Section 4) if:
an employer asks questions at a job interview about you, your family history or personal situation, that aren’t related to your ability to do the job.
an employer refuses to employ you – or to promote you - based on your genetic history or test results.
an employer alters your employment conditions because of your genetic history or test results.
an employer dismisses you because you had a genetic test and it was positive.
an employer sacks you because you need to take time off to care for your sick parent, child, or partner.
an employer pressures you into resigning because of your genetic history or test results.
an employer punishes you for temporary absence due to illness or injury(sacked, moved to lesser duties).
These grounds are for illustration; there are other grounds for lodging complaints. The process for lodging a complaint is described in the section What Can You Do?
Case Studies of Discrimination in Employment
Henry suffered from insulin dependent diabetes and complained that he was to be discharged from his role as an Army bandleader. The complaint was settled when it was agreed that Henry could continue in his duties subject to regular review of medical fitness.
Debbie complained that her application to join the police had been rejected because she had cancer of the cervix in the past. The complaint was settled with monetary compensation and an agreement to review medical criteria.
Mary complained of discrimination when she was sacked two weeks after she advised her employer she had been diagnosed with multiple sclerosis. After a small amount of time off work for tests, she had only minor symptoms and continued to be able to perform the job. The employer appeared to believe that no-one with MS could be relied on to continue working because the effects of MS vary greatly from person to person. The complaint was settled with payment of $6500.
Max was a teacher in a small country town.There were no problems with his work performance, but he felt that his boss was trying to get rid of him because the parents didn’t want a teacher with Huntington’s disease near their children, and the school was worried that the parents would complain.Max was dismissed and did not complain, despite being distraught.
This information is intended as a general guide only and you should obtain legal advice if you have specific questions.