What is a disability?

What is a disability?

Given the news about “morning sickness” and a decision by the Victorian Civil and Administrative Tribunal (VCAT) which confirmed it is a disability for the purposes of the Equal Opportunity Act 2010.

It is worth revisiting what is a disability or impairment is a protected attribute for the purposed of the Act. This is critical because it means if you disadvantage an employee based on a disability or impairment, you may be liable under anti-discrimination legislation.

Disability includes:

  • physical illnesses
  • mental illnesses and
  • behaviour that is a symptom or manifestation of the disability

In the case I referenced the employee alleged that her employer had directly discriminated against her by making adverse comments relating to her pregnancy, sick leave, lifting boxes, sitting down at work and toilet breaks.

Direct discrimination occurs when an employer (or an agent of the employer) treats an employee less favourably because they have an attribute that is protected under relevant legislation.

Summary: physical impairment, gender and pregnancy are all protected attributes under anti-discrimination legislation; severe morning sickness is considered a disability. You are required to take reasonable steps to accommodate pregnant employees in the workplace.

Michael O'Shaughnessy

Michael is a specialist in all things HR. With vast HR experience in the USA and Australia, Michael brings a wealth of knowledge and advice to HR Central. When he's not blogging for HR Central you can find him out for dinner in one of Melbourne's newest restaurants.

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