Skin deep? Managing reasonable adjustments to accommodate disability

What you need to know

• In determining whether a requirement or condition is reasonable, the fact that an alternative option may be available will not itself establish that the requirement or condition imposed is unreasonable.
• The volume of work, effort and time involved in implementing reasonable adjustments, in addition to the likelihood of the aggrieved person being able to comply with those adjustments, will be relevant to assessing reasonableness.
• Although a failure to make reasonable adjustments for a person with a disability is relevant to the assessment of both direct and indirect discrimination, direct discrimination remains concerned with treatment of the aggrieved person, while indirect discrimination is concerned with the impact of particular conduct.

What you need to do

• Ensure that managers are aware of the obligation to make reasonable adjustments for persons with disability.
• Consider all of the circumstances, including the adverse impact on the employee of a failure to make adjustments, in determining whether adjustments are reasonable.

In Sklavos v Australasian College of Dermatologists a Full Court of the Federal Court upheld the decision of the trial judge that the Australasian College of Dermatologists (the College) did not directly, nor indirectly, discriminate against the appellant, a doctor and participant in their training program, by requiring that he pass the College's final written and clinical examinations.

The single-minded pursuit of a worthy goal

In order to be registered as a practising dermatologist in Australia, a medical practitioner must be admitted as a Fellow of the College.  It  was a requirement of admission that practitioners undertake and complete a training program approved by the Board and pass an examination by the College.

From around late 2011, the doctor suffered from a psychiatric disorder being a specific phobia of sitting the College's final examinations, which later developed into a fear of any assessment by the College.  It was accepted that the doctor's phobia was a disability under the Disability Discrimination Act 1992 (Cth) (DDA).

The doctor wrote to the College and requested that, due to his psychiatric disorder, he be admitted as a Fellow without sitting the final written and clinical exams.  The College declined this request, stating that he would be required to sit the exams, with any reasonable request for special conditions taken into consideration.  The parties corresponded regarding the nature of adjustments that might be made, with the doctor eventually deciding that he would be unable to sit the exams. 

The claim 

At trial the doctor pursued a number of causes of action against the College, including that the College's failure to make reasonable adjustments, in particular dispensing with the examination requirement, amounted to either direct or indirect unlawful discrimination under the DDA.  The doctor's claims were dismissed in full by the trial judge.

The appeal

On appeal, the doctor contended that the College had breached the DDA:

• By failing to make reasonable adjustments to the method of addressing his eligibility for fellowship, amounting to direct discrimination; and
• By requiring that as a condition of eligibility for election as a Fellow he pass the College's examination, amounting to indirect discrimination.

The doctor submitted that he had suffered financial loss as a result of the College's alleged contraventions of the DDA.

Direct versus indirect 

Justice Bromberg reviewed the definitions of discrimination in the DDA and the authorities to confirm that:

• direct and indirect discrimination are mutually exclusive: whilst it is open to an applicant to claim that the same conduct amounts to direct and, in the alternative, indirect discrimination, the same conduct cannot constitute both;

• direct discrimination remains concerned with treatment of the aggrieved person: was the person treated less favourably, including in relation to any failure to make reasonable adjustments, because of their disability?; and
• indirect discrimination is concerned with the impact on the aggrieved person: did the requirement or condition, including any failure to make reasonable adjustments, have the effect of disadvantaging the person?

Direct discrimination 

The doctor argued that the College directly discriminated against him because of his disability, on the basis that they should have made one of three reasonable adjustments that were open to them to make, being:

• assessing the doctor by a method that did not involve the use of exams conducted by the College;
• modifying the Fellowship exams according to the recommendations of the doctor's psychiatrist; or
• assessing the doctor with a combination of workplace-based assessments that would have allowed for an assessment of his competence to practise, but in a way that would minimise the symptoms of his disability.

In determining whether direct discrimination had occurred, the Court found that nothing the College did or did not do was by reason of the doctor's disability.  The Court found that the College's requirement that all trainees sit and pass exams applied generally and that he had not received less favourable treatment than a relevant comparator. 

Consequently, the Court found that as the exam requirements were not imposed due to the doctor's disability, there was no direct discrimination. 

Indirect discrimination

The parties agreed that the College imposed a condition upon the doctor that he needed to pass the final exams in order to be admitted as a Fellow and that due to his disability, he could not comply with this condition.  As a result, the requirement had the effect of disadvantaging people with the doctor's disability.  However, the examination requirement would not be indirect discrimination, if it was reasonable in the circumstances.

Reasonableness

The Full Court upheld the initial finding that the College's assessment regime was appropriate and reasonable.  Regardless of whether an alternative mode of assessment may have been possible, for example workplace-based assessments, this did not detract from the reasonableness of the examination requirement, given the appropriateness of that requirement to the assessment of practitioners. 

In reaching this conclusion, the Court considered the various difficulties confronting the College in providing an alternative assessment program for the doctor:

• It was accepted that the sole objective of the College's training and assessment practices was ensuring that only medical practitioners who were "safe to practise" dermatology were accredited to do so.   
• The Court gave weight to the impracticality of an alternative assessment method, by reason of the volume of work, effort and time that would be involved in formulating and providing it. 
• The Court also considered that as a result of the examination condition, the doctor would be prevented from practising his chosen profession, which would have an adverse effect on his professional reputation, his personal life and his general wellbeing, sense of self-worth and satisfaction. 
• However, the adverse impact on the doctor was balanced against two other matters. First, the doctor was still able to continue practising as a general practitioner, with a focus on skin conditions.  Secondly, the  doctor had performed poorly in his 2010 clinical exams and had demonstrated an inability to successfully interact with the College, which provided some indication of the probability of his likely success if an alternative assessment program had been provided.

In considering all of the circumstances, the Court determined that the proposed adjustment of an alternative assessment method would impose an unjustifiable hardship on the College.

Authors: Jon Lovell, Partner; Abigail Cooper, Senior Associate; Geoff Giudice, Consultant; and Tess Birch, Graduate.