Background
Dr Sklavos was a doctor who wanted to practice as a dermatologist. In order to practice in his chosen field, Dr Sklavos needed to be admitted as a Fellow of the Australasian College of Dermatologists (College). A requirement of admission as a Fellow was that he must complete a training program and pass the College's final written and clinical examinations.
Dr Sklavos experienced a number of difficulties while participating in the College's training program, and in 2012 was diagnosed with specific phobia related to sitting the College's examinations. This phobia was accepted as a disability within the meaning of the Disability Discrimination Act 1992 (Cth) (DD Act).
Dr Sklavos made a number of requests that the College admit him as a Fellow without having to undertake and complete the final examinations. The College declined these requests, though it told Dr Sklavos that it would consider any reasonable request made by him for special conditions in the examinations, under its special conditions policy. Dr Sklavos and the College engaged in various correspondence regarding the nature of adjustments which might be made to enable Dr Sklavos to sit the examinations, but ultimately, with the benefit of advice from his psychiatrist, Dr Sklavos decided that he was unable to sit the examinations.
Initial decision
In his Federal Court action1, Dr Sklavos claimed that the College had engaged in direct and indirect discrimination against him.
Direct disability discrimination
Under the DD Act, direct disability discrimination occurs when a person is treated less favourably because of their disability than another person without a disability (often referred to as "the comparator") in the same circumstances.
Dr Sklavos argued that the College had directly discriminated against him by failing to make reasonable adjustments to its method of assessing his eligibility for admission for fellowship, in its failure to waive the requirement that he sit the examinations.
The Court rejected this argument, finding that the relevant "comparator" would be subject to exactly the same requirement to sit the examinations.
Indirect disability discrimination
Indirect discrimination under the DD Act occurs when there is an unreasonable "requirement or condition" imposed that is the same for everyone, but has an unfair effect on people with a disability. Indirect discrimination will not occur if the imposed requirement or condition is reasonable, having regard to the circumstances of the case.
Mr Sklavos argued that the College had indirectly discriminated against him, in requiring him to pass the examinations as a condition of eligibility for fellowship, and that this requirement had the effect of disadvantaging him as the result of his disability.
The Court also rejected this claim, finding that the College's requirement for trainees to sit for examinations was logical and reasonable, commenting that the requirement was "close to a necessity" because it was the only method the College had to satisfy itself of a trainee’s competence without the College undertaking substantial work to develop alternative assessment programs2. Accordingly, the Court was satisfied that the examination requirement, as it applied to Dr Sklavos, was reasonable having regard to the circumstances of the case.
Full Court Appeal
Dr Sklavos appealed the decision to a Full Court of the Federal Court. The Full Court upheld the trial judge's decision and dismissed Dr Sklavos' claims.
In relation to the claim of direct discrimination, the Court found that the College’s requirement that trainees sit and pass all examinations applied generally, and nothing the College did was because of Dr Sklavos’ disability. Because the examination requirement was not imposed because of Dr Sklavos' disability, there was no direct discrimination.
Dr Sklavos' appeal in relation to the indirect discrimination claim centered on the argument that the court had erred in holding that the College had discharged the burden imposed by the DD Act of establishing that the examination condition was "reasonable, having regard to the circumstances of the case". The Full Court considered that the fact that alternative modes of assessment to examinations were possible (e.g. workplace-based assessments) did not detract from the reasonableness of the examination requirement in the circumstances, having regard to the appropriateness of that requirement to the assessment of practitioners. In upholding the court's decision, the Full Court found that the examination requirement was reasonable, having weighed a number of factors, including the cost and effort involved in creating an alternative accreditation program against the impact of the examination requirement on Dr Sklavos, including that it prevented him from practising his chosen profession. The Full Court was satisfied that the proposed adjustment of an alternative assessment method would impose an unjustifiable hardship on the College.
In reviewing the definitions of discrimination under the DD Act and legal authorities, the Full Bench confirmed that direct and indirect discrimination are mutually exclusive. While it may be open to an applicant to allege that the same conduct constituted direct discrimination and, in the alternative, indirect discrimination, the same conduct cannot constitute both. Direct discrimination remains concerned with the treatment of the aggrieved person, in terms of whether the person was treated less favourably (including regarding any failure to make reasonable adjustments), because of their disability. By contrast, indirect discrimination is concerned with the impact on the aggrieved person, in terms of whether a requirement or condition, including any failure to make reasonable adjustments, had the effect of disadvantaging them.
Bottom line for employers
- Employers should take care to ensure that policies are reasonable and do not have a negative impact on people who possess a particular protected attribute.
- However, policies that have a negative impact on a group of people with a particular protected attribute may not be discriminatory if they are reasonable and have a legitimate purpose.
- Employers should ensure that all managers are aware of the obligation to make reasonable adjustments to accommodate employees with a disability.
- It is necessary to consider all of the circumstances, including the amount of time, cost, and effort associated with making reasonable adjustments to policy requirements or conditions, the likelihood of the person with the protected attribute being able to comply with those adjustments and the adverse impact on the employee of failing to make the reasonable adjustments, will be relevant in assessing whether the adjustment is reasonable.
- Sklavos v Australasian College of Dermatologists [2016] FCA 179.
- Sklavos v Australasian College of Dermatologists [2016] FCA 179, at 203.
- Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [16].
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