Disability

What does the Human Rights Act mean by disability?

The ground of disability covers:

  • physical disability or impairment (e.g. respiratory conditions)
  • physical illness
  • psychiatric illness (e.g. depression or schizophrenia)
  • intellectual or psychological disability or impairment (e.g. learning disorders)
  • any other loss or abnormality of psychological, physiological or anatomical structure or function (e.g. arthritis or amputation)
  • reliance on a guide dog, wheelchair or other remedial means
  • the presence in the body of organisms capable of causing illness (e.g. HIV/AIDS or hepatitis).
What does the Human Rights Act says about disability?

It is unlawful to discriminate on the basis of disability in any of the areas of public life covered by the Act. The Act covers disabilities, which people have presently, have had in the past, or which they are believed to have. It is also unlawful to discriminate against relatives or associates of people with a disability, because of that disability. This can mean, for example, a spouse, carer or business partner.

What are the exceptions applying to disability?

There are a number of circumstances where it is not unlawful to discriminate on the ground of disability. These include:

  • Reasonable accommodation: If a person requires special services or facilities and it is not reasonable to provide these, then the provider or employer need not provide them.

Example: It may not be reasonable to expect a small business to relocate offices, or pay out large amounts creating disability access in an existing building.

  • Risk of Harm: If a risk of harm to a person or others is not reasonable to take, then the provider or employer need not take the risk or reduce the risk to an acceptable level. BUT the risk of harm exception does NOT apply if, without unreasonable disruption, reasonable measures could be taken to reduce the risk to a normal level.

In goods and services:

A provider of goods and services can:

  • refuse to provide the goods and services if a person’s disability requires they be provided in ‘a special manner’ and the provider cannot reasonably be expected to provide them in that ‘special manner’
  • provide the goods and services on terms that are more onerous than those which are available to other people if a person’s disability requires they be provided in ‘a special manner’ and the provider cannot reasonably be expected to provide them without requiring more onerous terms.

Insurance:

It is unlawful to refuse to provide insurance by reason of a prohibited ground of discrimination.

It is not unlawful to offer insurance on different terms or conditions for people with a disability if it is based on:

  • actuarial or statistical data, upon which it is reasonable to rely, relating to life expectancy, accidents or sickness or where no data is available
  • reputable medical actuarial advice or opinion, upon which it is reasonable to rely, and which is reasonable in the particular circumstances.

Case note:

A man who suffered from mild asthma had a 50% loading added to his mortgage protection insurance premium because of his condition. The insurance company had relied on data provided by a doctor relating to medical life risks, which gave asthma a rating between 0 and 75%. This did not amount to sufficient data and no indication was given as to why a premium level of 50% had been applied as opposed to 20, 40 or 70%.

In employment (includes pre-employment and advertising):

  • work involving national security
  • authenticity and privacy – domestic employment in a private household
  • crews of ships (staff employed outside of New Zealand)
  • regulations that require the exclusion of people with certain diseases from some jobs. Pre-employment questions regarding these specific diseases will be lawful
  • health and Safety in Employment Act requires minimum health requirements to be in place. Where safety is an issue, relevant questions can be asked.

General qualification on employment exceptions:

No employer can treat an employee differently (based on a ground), even if an exception applies, if, with some adjustment of activities some other employee can carry out the duties.

Land, housing and accommodation:

  • shared residential accommodation
  • hostels, institutions etc (sex, marital status, religious or ethical belief, disability or age)
  • risk of harm exception.

Superannuation:

It is unlawful for superannuation schemes to treat people differently on the basis of disability except where:

  • the superannuation scheme was in existence before 1 February 1994 and the person became a member of the scheme before 1 January 1996
  • different contributions from, or benefits for members are based on reasonable data.

For further information on disability issues.

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