Australia is a very diverse nation with nearly half of Australians either born overseas, or with at least one parent who was born overseas. There are more than 300 different languages spoken around the country and more than 270 cultural backgrounds are represented. Despite federal legislation, it is possible to still experience racial discrimination in the workplace. It is important for employers and employees to understand their rights and responsibilities. Here are some ways to identify racial discrimination in the workplace, and how to address such discrimination.
The Racial Discrimination Act 1975
In 1975, the Racial Discrimination Act (RDA) was enacted by the Federal Parliament, bringing Australian law into line with international agreements. The Act made racial discrimination unlawful in all parts of daily life, including within the workplace. In particular, it prevents discrimination against people on the basis of their race, colour, descent or national or ethnic origin.
The Act also legislated against racial hatred (sometimes called racial vilification). Racial hatred is doing something in public which is likely to offend, insult, humiliate or intimidate another person because of their race.
Racial discrimination in the workplace
The RDA includes many protections from racial discrimination in the workplace. These laws cover all employers, in both the public and private sector. The RDA also protects all employees, including trainees, apprentices, and probationary staff. Further, customers of a business are also covered under the legislation and can also take action on breaches of the law.
The RDA covers any situations where an employee feels they have been discriminated against because of their race, including where they are:
- refused employment.
- given less favourable working conditions.
- chosen for redundancy.
- prevented from accessing equal training opportunities.
- denied promotions, allowances, or other employment benefits.
All employers have a duty of care to take all reasonable steps to prevent instances of racial discrimination or hatred in their business. This includes having programs and policies to address problems immediately and consistently. Employers can be held jointly responsible for racial discrimination where reasonable steps have not been taken to prevent it. This is known as ‘vicarious liability’. Vicarious liability also covers work-related events, functions organised by the business (such as Christmas parties), and business trips.
Examples of racial discrimination by an employer could include:
- Not hiring someone because of stereotypes about a particular race.
- Not taking action on instances of discrimination between employees.
- Unreasonably refusing to accommodate cultural or ethic traditions.
- Insisting all employees speak English, even on their breaks.
- Refusing to provide services to a customer on the basis of their ethnicity.
Special exceptions to the Racial Discrimination Act
There are some limited exceptions to the RDA that allow employers to legally ‘discriminate’ based on a person’s race or ethnicity. Discrimination in favour of a particular racial group can be permitted where it is done as a positive step to combat disadvantage or to meet specialist needs of a particular group. For example, a welfare organisation providing support to Chinese migrants may be allowed to restrict employment only to people with Chinese backgrounds.
It is also lawful to employ a person of a particular race if it is necessary to maintain authenticity or credibility in dramatic, artistic, entertainment, photographic or modelling performance or similar work.
How to make a complaint about racial discrimination
Anyone who believes they have been the victim of racial discrimination can attempt to address the issue directly with the person involved. If they are not comfortable doing this, or it does not address the problem, there are several ways they can take action. This can include making a complaint directly to their employer, a state-based industrial relations commission, or to the Australian Human Rights Commission (AHRC).
The AHRC complaints process allows anyone to make a complaint, and offers support to record your complaint for people who don’t speak or write English well. You do not need a lawyer to make a complaint and a complaint can be made on behalf of someone else.
The AHRC will then investigate your complaint, or explain why if it cannot proceed. A conciliation process between the two parties can occur, and court action is possible if the complaint is not resolved.