Please note: This information is provided as a guide only. Employers should obtain legal advice it they have specific questions about their obligations under racial discrimination legislation.
Racial discrimination is treating someone less favourably because of his or her race, colour, descent, national origin or ethnic origin than someone of a different 'race' would be treated in a similar situation. This is known as 'direct discrimination'.
For example: an employer refuses to hire a suitably qualified Aboriginal shop assistant and hires a less qualified non-Aboriginal assistant instead. He argues he could lose customers if he had Aboriginal people working in the shop. Direct discrimination can not be justified even for business reasons such as this.
It is also racial discrimination to make everyone satisfy the same criterion when the effect is that a higher proportion of people of one 'race' cannot satisfy it, unless the criterion is reasonable and relevant to the particular circumstances. This is known as 'indirect discrimination'.
For example: a rule that police recruits must be taller than 175cms will exclude a higher proportion of applicants of Asian descent. Unless the police service can justify the minimum height requirement, it will be unlawful. Australian police services no longer impose a minimum height requirement.
The Racial Discrimination Act 1975 (RDA) provides for 'special measures'. These are programs with the objective of securing the adequate advancement of a group, or individual members, affected by historic disadvantage to help them enjoy and exercise their human rights in full equality.
The RDA makes it is unlawful to discriminate in the area of employment in: advertising jobs, recruitment, the selection process, access to training, promotion opportunities, the terms and conditions of employment, termination of employment. It is also unlawful in the provision of goods and services; the right to join a trade union; access to places and facilities; land, housing and other accommodation.
The RDA makes offensive behaviour based on racial hatred unlawful. Racial hatred can include unlawful racially offensive behaviour in public based on the race, colour, national or ethnic origin of a person or group of people which is likely to offend, insult, humiliate or intimidate. Unlawful offensive behaviour might include:
The act must have occurred within sight and hearing of other people (although other people do not have to be present) or in a place to which the general public is invited or has access.
The racial hatred provisions state that the following things are not unlawful if 'done reasonably and in good faith':
