HREOC Website: Information for Employers

For further information on Race discrimination and racial hatred
click on the links below:

Racial Discrimination Act 1975

Visit the Racial Discrimination section of the HREOC website

Fact Sheet: Race discrimination and racial hatred

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.

What is racial discrimination?

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.

What racial discrimination is not

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.

Racial discrimination in employment

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.

What is racial hatred?

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:

a speech at a public rally
putting racist posters or stickers in a public place
writing racially offensive comments in a publication

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.

What racial hatred is not

The racial hatred provisions state that the following things are not unlawful if 'done reasonably and in good faith':

an artistic work or performance - for example, a play in which racist attitudes are expressed by a character
an academic publication, discussion or debate - for example, discussing and debating public policy such as immigration, multiculturalism or special measures for particular groups
a fair and accurate report on a matter of public interest - for example, a fair report in the media of an act of racial incitement or racially offensive conduct
a fair comment if the comment is an expression of a person's genuine belief.

The complainant, who was of Indian origin, was an employee of a Commonwealth Department. The complainant alleged that since commencing employment he had been subjected to discriminatory treatment which included colleagues saying "we don't want blacks on this table" and calling him a "black c***". The complainant alleged that on one occasion three co-workers placed a canvass bag over his head and pulled him around the room saying "we'll put him back on a boat to India". The complainant also claimed that two years later he was removed from his ordinary rostered duties because a co-worker refused to work with him on account of his race and his colour. The complainant stated that he complained to management but no appropriate action was taken. The complainant noted that he had been involved in disciplinary proceedings arising out of an incident relating to the vilification which resulted in him being demoted and transferred out of his previous work environment.

The respondent department denied that the complainant had been discriminated against on the basis of his race or colour. The respondent stated that the complainant had threatened a fellow employee with a knife and a subsequent investigation had lead to disciplinary action against the complainant. The department also submitted that it was not vicariously liable for any unlawful conduct as they had taken all reasonable steps to prevent such conduct.

The complaint was resolved by conciliation with the payment of $10,500 general damages, payment of the complainant's legal fees, apologies from the two individual respondents and the promotion of the complainant to another position within the organisation.

Source: HREOC 2000-01 Annual Report