Disability discrimination imbalance

By Jamie Wells

The High Court has endorsed a balanced view to discrimination complaints in accepting that a school is entitled to rely on bad behaviour to exclude a difficult but disabled student (Purvis v State of NSW [2003] HCA 62).

Test for direct discrimination

Direct discrimination cases have been inconsistent when considering whether there has been unlawful discrimination. In the context of disability discrimination, it is well accepted that direct discrimination involves a disabled person being treated less favourably than a person without the disability, in the same or similar circumstances. The test is easily stated in the abstract. The complicating issue is to decide whether behaviour that results directly from the disability forms part of the disability. If it does, the appropriate comparator is a person not only:
  • without the disability; but

  • who does not behave in the same way as the disabled person.
In situations where behaviour is the main reason for the less favourable treatment, this issue will usually be critical. If behaviour is taken to be part of the disability, a finding of direct discrimination usually follows. If behaviour is not treated as part of the disability, the result will depend on the way in which other people with similar behaviour would be treated.

A complainant will prefer direct discrimination over indirect discrimination, as the reasonableness of the treatment is not relevant. If there is less favourable treatment, the complainant satisfies the test, even if the result appears unbalanced or unduly onerous. This issue has now been resolved in Purvis.

The Purvis complaint

In Purvis, a school excluded a student with brain damage that led him to behave badly. The student's behaviour included, among other things, violence towards teachers and other students.

A complaint was made on his behalf alleging disability discrimination. It was argued for the student that, because his behaviour was caused by the disability, it was effectively part of the disability. Therefore, the proper comparison to assess less favourable treatment was between him and a student without the disability (or the tendency to behave in that way). Clearly, the school would not have excluded a well behaved student and success on this point would have justified a finding of direct discrimination.

The High Court decision

After several appeals in the federal courts, the High Court concluded by majority that the argument put for the student was incorrect. Although the reasoning among the majority judges varied, the general thrust was that:
  • offensive behaviour could result from a number of causes, only one of which was intellectual disability;

  • when comparing the school's treatment of the student with treatment likely to have been meted out to other students, it was inappropriate to disregard the characteristic of offensive behaviour.

In effect, the court must ask whether an ordinary student behaving in the same way would have been treated any differently. In answering that question, the High Court accepted that the disability played no part and the ordinary student would have been excluded as well.


The decision is extremely important as it means that cases of this type will need to be argued as indirect rather than direct discrimination. Indirect discrimination occurs if a standard is applied that does not single out any particular class of person but, in the context of disability discrimination, the standard works in practice by excluding a person with the disability.

In Purvis, it might have been argued that the school's standard of behaviour discriminated indirectly by setting the standard too high for the disabled student. However, whenever indirect discrimination is argued, the complainant must also satisfy the court that the standard is unreasonable. Had the argument in Purvis succeeded, the effect would be to allow these claims to succeed without the student having to show that the set standard of behaviour was unreasonable.

Although Purvis was a disability discrimination case, the same argument should apply to any protected attribute. For example, a requirement that all employees must be available to work full time should not be taken as directly discriminatory of those having family responsibilities. The fact that the need to work part-time often flows as a matter of necessity from family responsibilities is not sufficient. The proper approach is to apply the indirect discrimination test and ask whether the full-time requirement, impacting as it does on those with family responsibilities, is unreasonable. If it is unreasonable, and no other defences apply, indirect discrimination results.

This is significant, as it suggests that decisions that do not specifically target a protected attribute are likely to be upheld, as long as they are reasonable.
To view the full text of the judgment, click here.


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