Combatting Racism in the Workplace
Racism remains prevalent in the workplace, but what should employers be doing about it?
This article will discuss recent research which demonstrates that racism in the workplace remains a common issue faced by employees in Australia. It will then explore the obligations on employers in relation to racial discrimination by its employees, and what steps employers should be taking to address or avoid problems arising from racial discrimination in the workplace.
A 2022 report commissioned by Diversity Council Australia (DCA) has shown that racism is prevalent in workplaces throughout Australia.
In a survey of 1,547 Australian workers across a number of different sectors, DCA found that:
- 43% of racially marginalised non-white workers believed that racism in their workplace was common. This includes one in two Aboriginal and/or Torres Strait Islanders, who have experienced at least one incident of racial harassment or discrimination at work.
- However, less than a third of workers believed their employer was taking steps to prevent workplace racism.
A Scanlon Foundation Research Institute study in 2021 found that:
- 16% of Australians said that they had experienced discrimination in the last twelve months because of their skin colour, ethnic origin, or religion.
- 34% of Australians born overseas with a non-English speaking background experienced discrimination in the previous year because of their skin colour, ethnicity, or religion.
- 40% of Australians born in an Asian country experienced discrimination in the previous year.
- 32% of Australians have negative perceptions of Muslims.
Lastly, it was found that 51.5% of complaints of racial discrimination submitted to the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) in 2018-2019 were work-related.
So, what can your business do to provide your employees with a safer and more diverse workplace environment for its racially diverse employees? This article explores the key legal obligations employers must adhere to and discusses strategies which employers could use to create a safer workplace environment for racially diverse employees.
Racial Discrimination
For an employer to understand its legal obligations and develop strategies to combat racial discrimination, it is important to know and be able to recognise all different forms of racial discrimination that workplaces could encounter.
Types of Racial Discrimination
There are two main types of discrimination:
- Direct discrimination occurs when a person or specific group of persons is treated less favourably than others because of a certain characteristic. For example, if a person is dismissed because they are Asian.
- Indirect discrimination occurs when a policy, rule or practice applies to everyone in the same way, but disproportionately disadvantages a person or specific group of persons because of a certain characteristic. For example, a workplace policy which states that people cannot wear a face covering may disproportionately disadvantage Muslim women.
Both types of discrimination cause undue hardship, distress and humiliation to its victims.
Forms of Racial Discrimination
According to their “Racism at Work” report, Diversity Council Australia has described a number of different forms in which racial discrimination can be manifested.
- Obvious or overt racism occurs when racism is carried out by an identifiable perpetrator. This includes the use of insults, slurs, physical violence or commentary. For example, an African employee is told to go back to where they came from by a colleague.
- Subtle racism occurs in everyday interactions whereby the differences in a person or racial group’s physical appearance, cultural practices or accents are highlighted in a negative way. For example, an Asian person is told they look like a fellow Asian colleague despite the two not looking anything alike besides the fact they are both of Asian background.
- Systemic racism occurs when workplace policies, procedures and practices disadvantage racially marginalised people. For example, a workplace policy to promote employees from English-speaking backgrounds ahead of those from non-English-speaking backgrounds.
- Interpersonal racism occurs when individuals are racist towards another person. This includes name-calling and the making of stereotypical and other negative comments or jokes. For example, an Indian employee is continually isolated by his other colleagues because he speaks with an accent.
- Racial tokenism occurs when a racially marginalised person is used by an organisation to create an appearance of racial equity and to avoid accusations of racism. For example, a Sudanese employee is told by his employer to front staff photos in order to show that the business is culturally diverse.
- “Benevolent” racism occurs when a racially marginalised person is attributed with a “beneficial” characteristic or fact to perpetuate racial stereotypes and discrimination. For example, a Sri Lankan employee is asked to perform complex calculations at her workplace because “Asian people are good at mathematics”.
- Cultural appropriation occurs when a racially privileged person uses the culture of racially marginalised people for the own personal interest or gain. For example, a Caucasian employer dresses in traditional Chinese dress for photos to celebrate Chinese New Year because he knows his business has many customers with a Chinese background.
All forms of racial discrimination are considered harmful to those who are victimised by it.
Legal Obligations and Responsibilities of Employers
Australian employers are under numerous obligations to prevent and act against racial discrimination within their workplaces.
Racial Discrimination Act
The Racial Discrimination Act 1975 (Cth) (RDA) prohibits a person from doing any act which involves a distinction, exclusion, restriction or preference on the basis of a person’s race, colour, descent, or national or ethnic origin which “has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”.
The RDA also prohibits Australian employers from discriminating against a racially marginalised person on the basis of their race, colour or ethnic origin by:
- refusing or failing to employ the person; or
- refusing or failing to offer the same terms of employment, conditions of work and opportunities for training and promotion enjoyed by others with the same qualifications and employed in the same circumstances on work of the same description; or
- dismissing a person from their employment.
It is also unlawful for the person charged with procuring employment to treat a person less favourably than others in the hiring process on the basis of their race, colour or ethnic origin. Likewise, it is unlawful for employment agencies to prevent another person from offering employment or continuing in employment on the basis of their race, colour or ethnic origin.
It is no excuse for the employer to claim that they did a prohibited act for two or more reasons (one of which did not involve considerations of race). As long as one of the reasons for doing the prohibited act is the race, colour, descent, or national or ethnic origin of a person, then the act is taken to be done for that reason.
Vicarious Liability
In Victoria, both the Equal Opportunity Act 2010 (Vic) (EOA) and the Racial and Religious Tolerance Act 2001 (Vic) (RRTA) prohibit the discrimination of a person on the basis of their race. In particular, the EOA incorporates prohibitions to racial discrimination similar to those in the RDA.
Both statutes hold employers liable for the racial discrimination of a person (including an employee) by another employee or agent of the employer in the course of employment. For example, if Employee A racially discriminated against Employee B at work, both Employee A and the employer would be held liable for Employee A’s racial discrimination against Employee B.
An exception to this is where the employer can demonstrate that they have taken reasonable precautions to prevent the employee or agent from racially discriminating against the victim employee. This highlights the importance of employers having robust measures in place to prevent racial discrimination from occurring in their workplace.
Similar vicarious liability and exception provisions exist under the RDA for racial discrimination committed under that Act.
Victimisation
Employers are also under an obligation not to victimise a person. Victimisation occurs where the employer subjects a person to the detriment because they made or proposed to make a complaint under the RDA, EOA or RRTA about being racially discriminated against. Victimisation can come in many forms, and can include:
- demoting, standing down or dismissing the victim;
- spreading false rumours about the victim;
- berating or bullying the victim; and
- subjecting the victim to disciplinary processes.
If another employee or the employer’s agent victimises the employee, then the employer will also be held liable for the victimisation.
Consequences of Contravening Discrimination Laws
If an employer is found to have contravened the RDA, a Federal Court can make an order to rectify the racial discrimination which the victim has suffered. This may include, but is not limited to an order for the employer to stop discriminating against the victim, or an order for the employer to compensate the victim.
Likewise, VCAT or a Victorian Court may make similar orders against an employer who is found to have contravened the EOA or RRTA.
In Victoria, serious racial vilification is a criminal offence. This occurs where a person incites hatred likely to lead to physical harm towards the victim, or incites serious revulsion or serious ridicule against the victim, on the basis of the victim’s race. A person found guilty can be fined up to 60 penalty units (~$11,000) and/or face a maximum of 6 months imprisonment. Body corporates found guilty can be subjected to a large fine of up to 300 penalty units (~$55,000).
Adverse Action and Unfair Dismissal
The Fair Work Act 2009 (Cth) (FWA) prohibits employers from taking adverse action or unfairly dismissing an employee on the basis of the employee’s race. Racial discrimination is unlawful discrimination under the FWA.
Adverse action describes acts which are unlawful when they are done, threatened or organised by an employer for a prohibited reason.
Employers must not take any adverse action against employees on the basis of their race. Other characteristics protected by the law include, but are not limited to: colour, sex, age, disability, sexual orientations, and political opinion.
Adverse action may include:
- dismissing the employee;
- injuring the employee in their employment;
- changing an employee’s position to their detriment;
- discriminating between one employee and other employees;
- refusing to employ a prospective employee;
- discriminating against a prospective employee on the terms and conditions in the offer of employment.
With regards to the dismissal of a person on the basis of their race, this may also be grounds for an unfair dismissal action.
If an employer is found to be liable for a contravention of unlawful discrimination, they may be fined a maximum of $66,600 per contravention for a corporation, and $13,320 per contravention for an individual. A Court may also make any order it deems appropriate against an employer who is found to have committed unlawful discrimination. This may include an order for an injunction, reinstatement of the employee who has been discriminated against, and order for the employer to pay the discriminated employee appropriate compensation.
Criminal offences
Under the RRTA, serious racial vilification is a criminal offence and could result in a maximum penalty of 300 penalty units for body corporates, and 6 months imprisonment or a fine worth 60 penalty units for individuals.
Creating a Safe Workplace Environment
There are many employers who wish to demonstrate their preparedness to combat racial discrimination in their workplace. However, some employers are unsure of the measures they can actually take to put this into action. To create a more racially safe environment and tackle racial discrimination head-on, we recommend the following:
- You must ensure that you are aware of your legal obligations as an employer with regards to racism, and act to prevent non-compliance with those obligations.
- Your business should have a robust Workplace Discrimination Policy in place which clearly outlines the values and expectations of your workplace with regards to racial tolerance, racial discrimination. The policy may also outline further matters, such as a recruiting policy which ensures that your business is racially diverse and does not discriminate against racial minorities.
- Your business must adopt a clear complaints procedure so that employees who have a complaint against a colleague know who to submit the complaint to and the processes which will occur after the complaint is submitted. For medium to larger employers, we recommend that the complaints procedure involves the use of an independent investigator to ensure that both the complainant and respondent to the complaint is afforded the fairest outcome possible.
- You must ensure that both you and all of your employees are aware of the policies related to racial discrimination. You should train employees on how to recognise incidents of racism and how to respond to situations where they witness the racial discrimination of a colleague.
- You must ensure that you are aware of any risk factors where racism may be occurring in your workplace. It is only with prompt awareness of these risk factors that you are able to prevent incidents of racism from occurring in your workplace.
By following these steps, you will give your business the best chance at establishing a racially safe and diverse workplace.
Conclusion
PH Solicitor understands that many employers will want to create a racially safe and diverse workplace environment for their employees. Some employers may also need to deal with complaints of racial discrimination amongst their employees.
If you would like to discuss your business’ rights regarding racism in the workplace, we are here to help. Call our office on (03) 9642 0435 or email admin@phsolicitor.com.au for a confidential discussion with our team.
Sources
Equal Opportunity Act 2010 (Vic)
Fair Work Act 2009 (Cth)
Racial and Religious Tolerance Act 2001 (Vic)
Racial Discrimination Act 1975 (Cth)
https://www.dca.org.au/sites/default/files/racism_at_work_infographic.pdf
https://www.humanrights.vic.gov.au/for-individuals/race/
https://www.theage.com.au/national/we-need-to-talk-about-racism-at-work-20220320-p5a67n.html
