Whilst we have all no doubt experienced a fear of sitting an exam at some stage, is a phobia of sitting a College entrance exam a disability? The applicant in a recent appeal to the Full Federal Court of Australia alleged that he had been discriminated against on the basis of his disability being a phobia of sitting his final exams which we required to be eligible for election as a Fellow of his professional College.
The applicant had originally written to the College and requested he be admitted as a Fellow notwithstanding his inability to sit final examinations. The applicant relied on a provision within the Constitution which provided that he could be eligible for election as a Fellow in lieu of undertaking the examinations if he had other qualifications and experience as the Board of the College considered adequate. In support of this request, the applicant provided the College with a report from a consultant psychiatrist stating that he suffered from a specific phobia, which would have a disabling impact on his capacity and performance should he be required to sit the exams again.
The College declined the applicant’s request but stated that it would consider any special considerations proposed by him in relation to the sitting of the required exams. Whilst various correspondence passed between the applicant and the College concerning special considerations, ultimately the applicant decided he could not sit the required examinations and he lodged a complaint with the Australian Human Rights Commission (AHRC) alleging contraventions of the Disability Discrimination Act (DDA). The AHRC application was terminated resulting in an application being made to the Federal Court of Australia. Whilst a number of causes of action were pursued by the applicant at first instance, on appeal it was only the claims made under the DDA which were pursued.
On appeal, the applicant alleged that:
- The College failed to make reasonable adjustments to the method of assessing his eligibility for Fellowship resulting in direct disability discrimination
- The requirement to pass an examination resulted in him being subjected to indirect disability discrimination
- The College failed to comply with obligation imposed on it pursuant to the Disability Standards for Education 2005
It was not in dispute between the parties that the applicant’s phobia constituted a ‘disability’ for the purposes of the DDA.
Two of the appeal judges concluded that all grounds of the appeal should fail however, one appeal judge concluded that the appeal ground relating to the trial judge providing inadequate reasons for rejecting the claim that the College failed to comply with obligations imposed on it pursuant to the Disability Standards for Education 2005 should succeed.
In considering this matter, the Court noted that direct discrimination deals with disparate treatment whilst indirect discrimination deals with an adverse impact on a person. With direct discrimination a person is treated less favourably than a person without a disability in circumstances that are not materially different. Direct discrimination can also include a failure to make reasonable adjustments for the person suffering from a disability. With indirect discrimination, the discrimination arises from requiring the person with a disability to comply with requirements or conditions with which they cannot comply, as well as where the condition or requirements has, or is likely to have, the effect of disadvantaging that person. Indirect discrimination does not however, occur when the requirement or condition imposed is reasonable.
The Appeal Court concluded that the trial judge was correct to find that there was no basis to allege there had been any direct discrimination in this matter. That is because there was nothing that the College did, or did not do, as a result of the applicant’s disability. All trainees were required to sit and pass the examination and therefore the applicant was not treated less favourably than other trainees.
In relation to the claim of indirect discrimination, it was accepted that the applicant could not comply with the requirement to sit the exams as a result of his disability and that this disadvantaged him. It was therefore necessary to consider whether the condition that the applicant submit to an examination was reasonable. The Court found that the trial judge appropriately considered various difficulties facing the College in providing an alternative assessment program for the applicant and would cause an unjustifiable hardship to the College. As a result of these difficulties it was appropriate to find that the examination condition was reasonable and therefore that no indirect discrimination had arisen.
Whilst alternative options may be available to provide adjustments to accommodate people suffering from a disability, this does not mean that the imposition of a requirement or condition is unreasonable. When assessing the reasonableness of requirements and conditions it is important to consider the ease with which these adjustments can be made, together with the person’s ability to comply with the adjustments. No discrimination occurs when the person suffering from a disability is not treated less favourably than a person with no disability, or where a requirement or condition imposed is reasonable notwithstanding the fact that the person with a disability cannot comply with it and is disadvantaged by this.
Reference: Sklavos v Australasian College of Dermatologist  FCAFC 128
Post by Karen Kumar