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Liability for racially offensive remarks

Liability for racially offensive remarks

Snapshot:

  • Racially offensive remrks made in the workplace may constitute racial discrimination under the RDA.
  • This provides an alternative pathway for a compliant, rather than proceeding under the racial vilification provisions in the RDA.
  • An employer might be vicariously liable for such conduct committed by an employee.

Two decisions of the Federal Court illustrate that an employer may be liable for racially vilifying remarks made in the workplace. 

When an employee makes racially offensive remarks in the workplace, an employer may be liable under two separate provisions of the Racial Discrimination Act 1975 (Cth) (RDA). The first basis for liability is the much-discussed racial vilification provisions in Part IIA.1 The second basis is the general prohibition on discrimination in s9. Although this option is less well known, two Federal Court of Australia decisions demonstrate that s9 may be relied on even if the requirements of s18C could not be made out, and even if a defence may otherwise be available under s18D. Following these decisions, s9 seems to provide an additional option for employees subject to racially offensive remarks in the workplace.

Racial vilification provisions in the RDA

Liability for racially vilifying conduct is usually considered the exclusive province of Part IIA of the RDA. Section 18C provides that it is “unlawful” for a person to “do an act” that is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person or group of persons” and the act is done “because of the race, colour, or national or ethnic origin of the person . . . or group”. There have been several Federal Court decisions interpreting the provisions of Part IIA, including one that found that journalist Andrew Bolt and his employer The Herald and Weekly Times had breached the provisions by publishing two articles written by Bolt regarding several prominent Indigenous Australians.2

The provisions of Part IIA are considered controversial, particularly in relation to the limitations they place on freedom of speech. In 2013, the Abbott federal government proposed to dramatically amend the provisions by removing the words “insult” and “offend” and by greatly expanding the defences available. In 2016 a parliamentary inquiry was held into Part IIA and related procedural provisions. The inquiry report produced no clear consensus, and no changes were ultimately made to Part IIA.3

Part IIA was inserted into the RDA in 1995 based on recommendations in three significant reports: “Human Rights and Equal Opportunity Commission National Inquiry into Racist Violence in Australia” (1991), “Australian Law Reform Commission Report into Multiculturalism and the Law” (1992), and the “National Report of the Royal Commission into Aboriginal Deaths in Custody” (1991). Each of these reports recommended the enactment of a statutory cause of action for racial harassment, based on the harmfulness and the prevalence of such conduct, and the (assumed) lack of remedies available under existing law.

General anti-discrimination provisions in the RDA

Since the enactment of the RDA in 1975, legal remedies have been available for various forms of discriminatory conduct.4 The RDA prohibits discrimination in relation to certain specific areas and activities, such as access to places and facilities, the provision of land, housing and accommodation, provision of goods and services, joining a trade union, and employment.5 The RDA also contains s9, which, unlike ss11-15, is not restricted to discrimination in relation to specific areas or activities. The section, which is based directly on Article 1 of the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD), provides:

“(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on 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 elements of s9 have been analysed in several leading decisions of the Federal Court. According to a recent decision of the Full Court, liability depends on the plaintiff establishing three matters:

  • an act by the defendant involving a “distinction, exclusion, restriction or preference”
  • 'the act is “based on race, colour, descent or national or ethnic origin”
  • the act has the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of any human right or fundamental freedom on an equal footing”.6

Several points should be noted in relation to these elements. First, the requirement that the act be “based on” race defines s9 as a racial discrimination provision even though the term “discrimination” is not used in the text. Second, the reference to both “purpose” and “effect” means that liability does not depend on proving that the defendant intended to discriminate, but includes situations where this is the objective effect of the particular act.7 Third, s9(2) provides that the “human rights and fundamental freedoms” referred to in s9 include the rights referred to in Article 5 of ICERD. This includes two rights that are relevant in the employment setting – the right to work and the right to “just and favourable conditions of work”.

Two landmark decisions

Qantas Airways Ltd v Gama (Gama)8 involved racially discriminatory remarks made to an employee by his supervisor. The remarks, made in the presence of the respondent’s co-workers, suggested that workers compensation claims made by the respondent were not legitimate. The respondent experienced depression due to the supervisor’s conduct.

The Full Court of the Federal Court upheld the decision of the trial judge that the supervisor’s conduct infringed s9 of the RDA, and that the employer was vicariously liable under s18A. The Court stated that racially derogatory remarks made in a workplace could contravene s9, and that plaintiffs did not need to bring their case under s15 (which prohibits certain types of discrimination in relation to employment). Significantly, the Court held that remarks made in the workplace could constitute an “act” for the purposes of s9.9 In other words, there is no clear demarcation between discrimination by words (usually considered the province of Part IIA) and discrimination by conduct (usually considered the province of the other provisions of the RDA).

French and Jacobsen JJ emphasised that derogatory racial remarks are capable of meeting the essential requirements for liability under s9 (as outlined above), and that these requirements will often overlap in cases of this type:

“It may be that the making of the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or other characteristics. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race”.10

The Full Court stated that “remarks which are calculated to humiliate or demean an employee by reference to race . . . are capable of having a very damaging impact on the person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self-worth and thereby appreciably disadvantage them in their conditions of work”.11 The Court therefore found that each of the elements outlined above had been met.

Vata-Meyer v Commonwealth (Vata-Meyer)12 involved references to “black babies” and “Coon cheese” made to a female Indigenous employee by a co-worker. The Full Court affirmed the holding in Gama; that racially offensive remarks made in the workplace could contravene s9. Notably, the Full Court did not accept the respondent’s “innocent explanation” for the relevant remarks, nor the trial judge’s assessment of the respondent as simply “obtuse” and “unsophisticated”. As noted above, it is not necessary under s9 for the plaintiff to show that the defendant had a discriminatory intent or motive. However, proving that the defendant was aware of the offence caused by their conduct is relevant to establishing the “purpose” of the act.

Implications of these decisions

The decisions in Gama and Vata-Meyer establish that proceedings may be brought by an employee for racially derogatory remarks made in the workplace, based on s9 rather than Part II of the RDA. Such proceedings may be brought, for example, in circumstances where Part II is not available, such as where the relevant conduct does not occur “otherwise than in private”.13 Also, the only defence to proceedings under s9 is s8, which is unlikely to apply in speech-based cases.14 Section 18D, on the other hand, contains several broad defences to breach of s18C. These defences include “anything said or done reasonably and in good faith”, in an “artistic work”, or “for any genuine academic, artistic or scientific purpose” or in a fair and accurate report or a fair comment on any matter of public interest.

Finally, an employer may be held vicariously liable for conduct by an employee that breaches s9 or Part IIA, unless the employer “took all reasonable steps to prevent the employee . . . from doing the act”.15 Vicarious liability was relied on in both Gama (remarks by an employee’s supervisor) and Vata-Meyer (remarks made by any employee’s co-worker, which were condoned by a senior staff member) to attribute liability to the employer. Employers should therefore be aware that racially derogatory remarks made in the workplace may expose them to liability under the RDA on two separate basis. Further, the requirements of s18C do not apply to a claim brought by an employee under s9, and the defences in s18D do not apply to such claims. 

Bill Swannie is a lecturer in the College of Law and Justice at Victoria University, Melbourne. He is a member of the LIV Human Rights Committee. He is currently completing a PhD focusing on Australia’s racial vilification laws.

1. Part IIA of the RDA contains s18C (the prohibition on racial vilification), and s18D, which contains a range of defences to liability under s18C.

2. Eatock v Bolt (2011) 197 FCR 261.

3. Some changes were made to procedural provisions in the Australian Human Rights Commission Act 1986 (Cth).

4. Remedies for discrimination are also available under various state and territory anti-discrimination legislation.

5. See ss11, 12, 13, 14 and 15 of the RDA respectively.

6. Vata-Meyer v Commonwealth [2015] FCAFC 139, [58]-[60].

7. Wotton v Queensland (No 5) [2016] FCA 1457, [551]-[553].

8. Qantas Airways Ltd v Gama (2008) 167 FCR 537.

9. Note 8 above, at [76] per French and Jacobsen JJ, Branson J agreeing.

10. Note 9 above.

11. Note 8 above, at [78].

12. Vata-Meyer v Commonwealth [2015] FCAFC 139.

13. For example, where a racist remark is directed at a particular person, and where no other people are present: see McLeod v Power (2003) 173 FLR 31.

14. Section 8 of the RDA relates to “special measures” required for the advancement of certain racial or ethnic groups, as defined in Article 1(4) of ICERD.

15. Vicarious liability is provided under s18A (for Part II) and s18E (for Part IIA).

 


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