Trolling through (now ancient history) some of the
submissions of the CAsA HREOC exemption application in 2002...
"...The Civil Aviation Safety Authority (CASA) applied on 29 July 2002 to the Human Rights and Equal Opportunity Commission for temporary exemption under the Sex Discrimination Act 1984 ("SDA"), section 44, and the Disability Discrimination Act 1992 ("DDA"), section 55, for persons acting pursuant to existing Civil Aviation Regulations regarding medical fitness and proposed amendments to those regulations..."
...some of which are very good and hold many similar arguments that the pilot CVD fraternity are currently putting forward and that Arthur successfully argued all those years ago...
A. Denman;
W.Hamilton;
Civil Air Association;
Aircraft Owners and Pilots Association / Association of Women Pilots;
From CAA submission:
Colour perception
3.37
Can readily distinguish the colours that need to be distinguished for the safe exercise of privileges, or performance of duties, under the relevant licence
Note For how to demonstrate this, see subregulation 67.160 (6).
There have not been any ATC performance issues, be they safety related or otherwise, to support these changes. The changes to the testing process for colour vision impaired people proposed by CASA are unnecessary and will certainly discriminate against current and future air traffic controllers with colour vision impairment.
Discrimination in employment is dealt with at section 15 of the DDA. At clause 4, it states,
“(4)Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.”
We stand on the evidence of past practice and performance of employees with colour vision impairment to illustrate that these people are able to carry out the inherent requirements of their particular employment and indicate that the test that allows them to do so, the Farnsworth lantern test, does not cause unjustifiable hardship to their employer, Airservices Australia. The tests for colour vision impairment are conducted once only as the condition of colour vision impairment never alters. As an alternative, all other Class 3 medical tests such as eyesight, audio, physical fitness, cholesterol level, diabetes, blood pressure must be conducted every two years because these results can change. Even accepting the proposition that the additional Farnsworth test is an expense, it not an ongoing expense and given the limited nature of the condition in males (8% or less), it is not required very often and if required would be conducted within the cost structures associated with normal biannual medical examination (at no additional cost).
To allow the exemption sought by the CASA would mean that colour vision impaired people would not be able to work as air traffic controllers despite no evidence that the condition prevents them from performing the inherent requirements of the their occupation and on that basis we submit that the exemption conflicts with the object of the DDA.
We note the findings of Mr. Barry L Cole AO, Professor of Optometry, Feb 1998, who prepared a report for Airservices Australia, “Colour Vision Standards for Air Traffic Controllers” the purpose of which was to advise, “whether or not the current Australian colour vision standards for air traffic controllers is appropriate for operation of the Thomson radar TAAATS air traffic management system”
He provided three options for Airservices Australia to consider for risk minimisation, and we quote these directly from his report,
“Option 1 – Exclude all persons with defective colour vision.
Exclude all persons with abnormal colour vision on the grounds that there is risk and that there is no present method of test that has been shown to differentiate from among those with mild deutronomaly which ones may be handicapped in the operation of modern ATC systems.
This option makes the presumption that the social and economic risks of air accident outweighs any social disadvantage arising from the exclusion of a further 3% of men from employment in ATC.
Mertens recommends this option and it is well supported by the evidence. It is an easy and inexpensive standard to administer. The high social and economic risks that could be associated with errors in air traffic control give further weight to the argument that all colour vision defectives should be excluded.
Option 2- Introduce a test of the ability to distinguish surface colours additional to the Lantern Test
Modify the existing standard in the following ways –
(b) ensure that the standard based on the Farnsworth lantern is administered rigorously without exception or waiver so that those who pass are the more mildly affected anomalous trichromats, and
(c) subject those who pass the Farnsworth lantern to further tests to-
(i) identify and exclude those who have a protan defect by testing using the locally available Medmont C100 test or by referral to a colour vision clinic for testing with an anomaloscope.
(ii) confirm (or otherwise) they have reasonable ability to distinguish surface colours. This can be done by administering and requiring a pass the Farnsworth Panel D15 test.
These changes to the colour vision standard will ensure that only those with mildly defective colour vision and who do not have a reduced ability to see red signals undertake ATC duties.
Option 3 - A practical test of performance with colour coded displays
A third option is to develop a practical test to establish whether or not a person with defective vision is able to carry out the task of air traffic control using colour coded graphics displays.
This option is an attractive one to those who are concerned that occupational health standards do not discriminate unfairly against people with disabilities. A practical test reassures those who are not convinced that presence of a disability in itself demonstrates that there will be reduced task performance.
This is a reasonable viewpoint: it is necessary to show that the presence of a defect will impede practical performance and, if it is not possible to do this, then a test to exclude people with a disability would be discriminatory.
However, in riposte, it can be said that the evidence supporting the view that defective colour vision is an impediment to satisfactory performance in tasks involving colour coding is quite compelling. This evidence has been summarised in the sections above. It can also be said that there is no experimental evidence to show that persons with defective colour vision do perform such tasks equally as well as those with normal colour vision. It is not as if there is a conflict of evidence, there is evidence that defective colour vision is a risk factor and no evidence that it is not.”
In his final recommendation, Cole proposed to exclude from ATC all people with defective colour vision as this would be the least expensive option and because of the risks associated with such people not properly recognizing colours. As an alternative, for people who had a very mild defect and may not have any trouble with ATC colour codes, he proposed that such people must pass the Farnsworth lantern test and also seek an optometrists opinion about whether they have a deutean defect or a protan defect. The suggestion here being, we believe, to exclude people with a protan defect.
For convenience we underlined the section in this report that shows how these tests can discriminate against people with disabilities. Cole identifies the option that contains no risk and least cost (Option 1) but also notes that, “it is necessary to show that the presence of a defect will impede practical performance and, if it is not possible to do this, then a test to exclude people with a disability would be discriminatory.”
On the basis of this material we submit that the case for the psuedoisochromatic test in isolation being fair or not discriminatory is undermined by Cole’s statements in the report provided to Airservices.
Alas it was all to no avail as the HRC in their wisdom granted CAsA an exemption for a period of five years...
Decision of the Commission
The Commission grants a conditional exemption from sections 19 and 29 of the DDA, and from sections 18 and 26 of the SDA, to persons acting pursuant to existing Civil Aviation Regulations regarding medical fitness, or pursuant to currently proposed amendments to those regulations.
The exemption is subject to the following conditions.
1. The exemptions commence on 26 November 2002 and expire on 26 November 2007.
2. The exemptions are to apply only where a person's pregnancy (for the purposes of the SDA) or disability (for the purposes of the DDA) prevents the person safely fulfilling the inherent requirements of the role covered by the licence concerned.
I can only presume that in the interim period of the exemption (cause it is very hard to track) that FF then took it upon themselves to notify the only difference to the ICAO CVD SARP as such...
"...Para 6.2.4.4 Candidates for an air traffic controller licence who fail an Ishihara 24-plate test are, in practice, not employed by Australia’s ATS provider..."
...and if you read, in particular, the Denham & CAA submissions you will see that this strange (discriminatory for future ATC CVD applicants) ND is very much in keeping with the regs (CASR 67.150 & 67.160) as it still facilitates for those existing & identified ATC CVD officers.
However my questions are:
Is this ASA discriminatory ATC hiring policy still in place or are future ATC applicants with an identified CVD limited in scope of the roles they can perform??
Was the 2002 FF exemption application (approved for five years) all part of a GMP (Grand Master Plan) to bring us in line with the ICAO SARPs & therefore avoiding any possible future liability (liability paranoia strikes again)??
TA in advance...
