The inherent requirements exception

31.2 Under the Disability Discrimination Act 1992 (Cth) (DDA) it is lawful for an employer to discriminate against a person on the ground of the person’s disability if the person is unable to carry out the ‘inherent requirements’ of the particular job or would, in order to do so, require services or facilities that would impose an ‘unjustifiable hardship’ on the employer. This defence is available to an employer only in relation to ‘hire and fire’ decisions, namely, determining who should be offered employment or dismissed as an employee.^[1]

31.3 The Inquiry has considered two aspects of the inherent requirements exception as it relates to genetic information: how to define the inherent requirements of a particular job; and whether an employer should be able to discriminate against a job applicant or employee on the basis that, while he or she is currently able to perform the inherent requirements, this may not be the case in the future.

Current law

31.4 The term ‘inherent requirements’ is used in the DDA, the Human Rights and Equal Opportunity Commission Act 1984 (Cth) (HREOC Act) and the Workplace Relations Act 1996 (Cth) (WRA). The term is also used in New South Wales, Tasmanian and Northern Territory anti-discrimination legislation, while other jurisdictions use terms such as ‘work genuinely and reasonably required’.^[2] The term ‘inherent requirements’ is not defined in the DDA, the HREOC Act or the WRA.

31.5 In HREOC’s view, inherent requirements must be determined in the circumstances of each job and may include:

• the ability to perform the functions that are a necessary part of the job;
• productivity and quality requirements;
• the ability to work effectively in the team or other type of work organisation concerned; and
• the ability to work safely.^[3]

31.6 There has been some judicial consideration of the term ‘inherent requirements’ as it appears in the WRA and other industrial relations legislation. In Cramer v Smithkline Beecham,^[4] two employees of a pharmaceutical plant were dismissed because of their sensitivity to penicillin, to which they were exposed at work. The Federal Court decided that penicillin tolerance was an inherent requirement of working in the pharmaceutical plant and therefore the dismissals were lawful.

31.7 In Qantas Airways Ltd v Christie,^[5] Qantas had dismissed a 60-year-old international airline pilot on the basis of his age. In deciding whether the pilot could fulfil the inherent requirements of his position, the High Court considered it relevant to look at the surrounding context of his employment, as well as his physical ability to perform the task. As most countries prohibit pilots over 60 years of age from flying in their airspace, the Court decided that the surrounding context meant that he was not able to fulfil the inherent requirements of the job even though he might be physically capable of flying.

31.8 In X v Commonwealth,^[6] the High Court considered the dismissal of a soldier from the Australian Defence Force (ADF) because he had tested positive to HIV. The soldier was discharged from the ADF despite being asymptomatic and in excellent physical health at the time. Once again the High Court found that inherent requirements must be assessed in context and include the ability to work in a manner that does not pose a risk to the health or safety of the individual or other employees.^[7] In this case it was argued that the soldier was unable to bleed safely in the field without risking the infection of his fellow soldiers.

31.9 The Full Federal Court also considered these issues in Commonwealth v Williams.^[8] In that case a Communications and Information Systems Controller in the Royal Australian Air Force (RAAF) was discharged on medical grounds. He suffered from insulin dependent diabetes and was declared unable to meet the RAAF minimum employment standard, which requires members to be medically fit for long term deployment to a base with limited facilities and to be able to undertake base combatant duties.

31.10 Section 53 of the DDA provides that it is not unlawful to discriminate in relation to employment in the defence forces where the position involves the performance of combat or combat-related duties. The Federal Court held that the respondent was employed in a position involving the performance of combat-related duties because he was likely to be required to work in support of a person, such as a fighter pilot or other aircrew, performing combat duties.

31.11 In the above cases, the disability or other basis of alleged discrimination was a current or existing one: the employee was already intolerant to penicillin, aged 60 or diabetic. In X v Commonwealth, where the soldier was asymptomatic, it was argued that he was not able to fulfil the inherent requirements of the job because of the current risk of transmitting the virus. The courts have not yet considered the inherent requirements exception in relation to a disability that might or will arise in the future, for example, discrimination based on a predictive genetic test result. The cases suggest in deciding what amounts to the inherent requirements of a job, the courts will look further than the skills required in a particular position: the inherent requirements include the ability to work without risk to oneself or others.

Future ability to perform inherent requirements

31.12 DP 66 included two proposals in relation to the inherent requirements exception. The first was that, in assessing whether an applicant or employee is able to perform the inherent requirements of a job, only current ability to perform the inherent requirements should be relevant. The second proposal, considered later in this chapter, was that peak employer associations should encourage members to produce clearly defined job descriptions that set out the inherent requirements of every position in the workplace.

Submissions and consultations

31.13 Submissions generally acknowledged that genetic conditions with existing symptoms might have some impact on a person’s ability to perform the inherent requirements of a job. In this respect, a genetic condition was seen to be no different to any other medical condition or existing disability. The impact of the condition should be assessed, along with any necessary accommodation by the employer, in order to determine whether a person is able to do a particular job. Concern was expressed, however, in relation to genetic information that indicates that a disability may or will arise in the future.

31.14 In relation to asymptomatic individuals, the Victorian Disability Discrimination Legal Service made the following comment:

Life is complex and changing and an individual’s predisposition to certain conditions cannot be said to be sufficiently scientifically and/or medically determinative to exclude that individual on any grounds other than their current capacity to perform the position.^[9]

31.15 The Australian Council of Trade Unions (ACTU) expressed the view that the ACTU

cannot see how a predisposition to acquiring a condition in the future could impact on a person’s ability to meet the inherent requirements of a job, whether now or in the future.^[10]

31.16 The acting Disability Discrimination Commissioner commented:

in most instances legitimate assessments by employers should be concerned with a person’s ability to perform job requirements at present rather than with what may happen years into the future. This is consistent with the fact that employment in Australia is a relationship terminable by either party on relatively short notice.^[11]

31.17 The Advisory Committee on Health Research to the World Health Organisation has summarised the issue as follows:

Similar ethical concerns apply to the use of genetic testing by employers or potential employers. Current health problems that would prevent a person from carrying out the duties of employment, even when employers have made reasonable accommodations for illness or disabilities, can justifiably be used in employment decisions. But genetic conditions that constitute risks for future health problems should not be used to bar otherwise qualified people from employment. If and when they prevent the individual from continuing in employment, they can be dealt with appropriately.^[12]

31.18 While these comments reflect the position adopted in most submissions, the Australian Institute of Actuaries expressed the view that:

It is often an inherent requirement of a job that a person being appointed to fill it be expected to remain fit enough to perform the job for a reasonable period of time. This would be the case in any job, for example, where it would take a period of years to gain full proficiency. Disabilities that may exist in the future can affect how long an employee will be able to perform the job to the standards required. It is difficult to see how making an assessment of future ability to work can then be divorced from considering other inherent requirements of the job.^[13]

31.19 The Australian Chamber of Commerce and Industry (ACCI) noted that, in those jobs with legitimate health and fitness requirements, some predictive genetic testing may be appropriate.^[14] The Commonwealth Department of Employment and Workplace Relations expressed the view that limiting the use of predictive health information by employers may give rise to inconsistencies with occupational health and safety requirements.^[15]

31.20 The Inquiry notes that the definition of ‘disability’ in the DDA includes a disability that ‘may exist in the future’.^[16] The Anti-Discrimination Board of NSW pointed out in its submission that:

A reading of these provisions which would allow an employer to assess an individual’s ability to comply with the inherent requirements of a particular position in the future, would be incongruous with this prohibition.^[17]

31.21 One of the objectives of the DDA, and of anti-discrimination legislation more generally, is to prohibit discrimination on the basis of some factors that may arise in the future. Such factors are not considered to be a relevant or reasonable basis for discrimination in the employment context. The United States Equal Employment Opportunity Commission has echoed these concerns in the following statement:

[E]mployers may only require employees to submit to any medical examination if those examinations are job related and consistent with business necessity. Any test which purports to predict future disabilities, whether or not it is accurate, is unlikely to be relevant to the employee’s present ability to perform his or her job.^[18]

31.22 A number of submissions, while supporting the proposal in DP 66 in principle, sounded a note of caution in relation to its wording, namely, that inherent requirements should be assessed by reference to current ability. The acting Disability Discrimination Commissioner, for example, noted that:

Such an amendment could restrict entitlements, which in HREOC’s view presently exist under the DDA, for people to have a reasonable time to comply with job requirements. For example, a person temporarily incapacitated by illness would expect to have a reasonable time to recover fitness for work even though not ‘currently’ able to perform job requirements. A person requiring some initial adjustment period while workplace training is undertaken or assistive technology is made operational could likewise be seen as not ‘currently’ able to perform inherent requirements.^[19]

31.23 In relation to those exceptional cases where an assessment of an applicant’s future health may be justified, the Inquiry suggested in DP 66 that:

If an employer were faced with such a case, there are adequate mechanisms to deal with it, including the possibility of obtaining an exemption by the administering agency from the application of the anti-discrimination legislation.^[20]

31.24 The acting Disability Discrimination Commissioner did not support this approach:

Administratively it would appear feasible to deal with this small number of matters through the exemption process. However, as a matter of law and policy HREOC does not favour approaches that depend on the exemption process to make the law accord with a realistic interpretation of what should or should not be defined as discriminatory, rather than having the law as far as possible make sense as written.

31.25 Instead, the acting Disability Discrimination Commissioner suggested the following:

Except where exceptional circumstances can be demonstrated, reference to a person being unable to perform inherent requirements does not include circumstances where a person is currently able to perform those requirements but may become unable to in future. A person is not to be regarded as unable to perform inherent requirements if the inability is temporary and can be remedied within a reasonable period in the circumstances (for example where it is due to illness or where time is required to implement some reasonable adjustment).^[21]

Inquiry’s views

31.26 The Inquiry is of the view that, where genetic conditions are manifest they should be assessed in the same way as other medical conditions and disabilities in deciding whether an individual is able to perform the inherent requirements of the job. However, information about genetic predisposition can usually reveal only risks and probabilities and is unlikely to provide an accurate assessment of an individual’s future health. Other factors such as environment, lifestyle and chance also have a major impact on a person’s health. For these reasons, it remains the Inquiry’s view that, in general, it is not reasonable to rely on genetic information to predict a person’s future ability to perform the inherent requirements of a job.

31.27 Given the mobility of the Australian workforce, it is unlikely that genetic information will be sufficiently relevant to an applicant or employees’ ability to perform the inherent requirements of the job during the probable period of employment. Less than 25% of the working population in 2002 had been in the same job for ten years or more and less than 10% for twenty years or more.^[22] It has been estimated that Australian workers remain in their jobs for an average of six to seven years,^[23] although mobility varies substantially from one industry to another.

31.28 The Inquiry generally supports the policy position of the Victorian Equal Opportunity Commission as expressed in its Employer Guidelines on Pre-Employment Medical Testing. These guidelines acknowledge that future health status will not usually be relevant but that, where an employer wishes to assess this, the employer should be able to demonstrate that this is reasonable.

The main features of a non discriminatory pre-employment medical test are:

• it relates specifically to the genuine and reasonable requirements of the job;
• the specific physical capacities required for the job are accurately identified and are reasonable in all the circumstances;
• reasonable ways of accommodating people with disabilities/impairments have been considered;
• any facilities or services reasonably required by applicants with disabilities/impairments are provided if reasonable;
• any assessment of a person’s ability to perform the inherent requirements of the job is made in conjunction with these facilities or services;
• the test only assesses current health status and does not attempt to predict any future deterioration unless the employer can demonstrate that it is reasonable to do so.^[24]

31.29 The Inquiry notes the concern raised in submissions that limiting the assessment of an applicant or employee’s ability to perform the inherent requirements of a job to his or her current abilities may give rise to a new set of problems. In some situations it may take a period of time before an individual is able to meet the inherent requirements of the job because of training or reasonable accommodation adjustments. The Inquiry recommends that reform be clearly targeted at the dangers of using genetic information in assessing an individual’s ability to perform the inherent requirements of a job in the future. The Inquiry accordingly recommends that the Commonwealth amend the DDA, the HREOC Act and the Workplace Relations Act 1996 (Cth) to provide that, except where it is reasonable to do so, the assessment of an applicant or employee’s ability to perform the inherent requirements of a job should not include an assessment of whether he or she will be unable to perform the inherent requirements in the future on the basis of his or her genetic status.

31.30 Some jobs may require that an employee remains fit and healthy for some period into the future; for example, armed forces personnel stationed in remote locations, astronauts training for missions years in the future, or scientists stationed in Antarctica for long periods. In jobs that involve placement for long periods in remote locations with limited medical facilities, an inherent requirement of the job may be the ability to work without unreasonable risk to oneself or others at some time in the future. In these circumstances a medical assessment, possibly including predictive genetic testing, may be permissible. However, this would have to be assessed on a case-by-case basis. Such cases, which in the Inquiry’s view will be extremely rare, are accommodated in the recommendation by the requirement that any assessment of an individual’s prospective capacities be reasonable in all the circumstances.

31.31 The Inquiry is of the view that further guidance on these issues should be included in employer guidelines issued by HREOC and, possibly, in Disability Standards issued under s 31 of the DDA. The development of Disability Standards and guidelines is discussed further, below.

Job descriptions setting out inherent requirements

31.32 In DP 66 the Inquiry proposed that peak employer associations should encourage members to produce clearly defined job descriptions that set out the inherent requirements of every position in the workplace.^[25]

Submissions and consultations

31.33 A number of submissions were critical of this proposal. The Victorian Automobile Chamber of Commerce noted that, while the preparation of job descriptions was prudent business practice, most jobs did not involve health risks or require the use of genetic testing or information. In addition, a requirement to produce written documentation would impose a burden on small business.^[26]

31.34 The Department of Employment and Workplace Relations expressed the view that the proposal would impose unjustifiable costs and was probably unworkable given the constantly changing nature of jobs and job descriptions.^[27] ACCI noted that the development of job descriptions was a matter for individual employers rather than for peak employer bodies.^[28]

31.35 The acting Disability Discrimination Commissioner commented that:

I agree that re-examination by employers of the inherent requirements of jobs will often be beneficial, in removing restrictions which may have become outdated with changes in working methods and technology and in focusing on results to be achieved rather than on particular methods for achieving those results which might unnecessarily exclude people with disabilities.

Further encouragement in this process from peak industry bodies would be welcome accordingly.

However, it should be noted that the objective of achieving job descriptions setting out the inherent requirements of every position may be unduly ambitious.^[29]

31.36 The Inquiry notes that HREOC’s website includes the following guidance for employers on this matter:

the DDA does not require employers to have written duty statements and where a duty statement does exist it will not necessarily be conclusive. A requirement contained in a duty statement might not be found to be an inherent requirement. The Commission and the courts have emphasised that a requirement is not inherent simply because it is stipulated in a duty statement or contract of employment. Equally, a requirement might not appear on a duty statement but still be found to be an inherent requirement.^[30]

Inquiry’s views

31.37 The Inquiry agrees that the proposal in DP 66 was overly broad in so far as it sought to encourage the production of job descriptions setting out the inherent requirements for every position in the workplace, even if this is sound business practice. However, the Inquiry is of the view that some reassessment of this issue by employers is required in relation to those positions in which genetic information, including family medical history, is used to assess an applicant or employee’s ability to perform the inherent requirements of a job. In relation to those positions, the Inquiry is of the view that employers should develop clearly defined job descriptions that identify the inherent requirements of the job. They should also develop policies to ensure that genetic information is used to assess an applicant or employee’s ability to meet the inherent requirements only in relevant and reasonable circumstances.