Although everyone has a right to a workplace that is free from racial discrimination, this is not always the reality. Racism in the workplace may arise because of toxic work culture or latent racial biases in workplace procedures. Ultimately, it is your duty as an employer to ensure you respond to allegations of racism immediately. You must also take reasonable steps to prevent this type of conduct from occurring. This article explains what to do if you have a racist employee in the workplace.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What is Racial Discrimination?
Racial discrimination occurs when someone treats a person or group of people less favourably than others based on their:
- race;
- colour;
- descent; or
- national or ethnic origin.
Generally, the laws regarding unlawful discrimination define discrimination as:
- direct discrimination, where a person treats another person less favourably than the person would treat another person because of that person’s race (or their assumed race); or
- indirect discrimination, where a requirement or condition that applies generally to everyone has the effect of disadvantaging a particular person or group and that person or group does not or is not able to comply with it.
As an employer, it is important that you are attuned to the subtle forms of discrimination that can arise in the workplace. For example, a workplace policy that applies to all but disadvantages a particular group or person can be an indirect form of discrimination.
What Should I Do as an Employer?
If you are an employer, you have a duty of care to your employees to ensure their health and safety while they are at work. The law also may hold you liable for acts of racial discrimination committed by your employees in the workplace. This duty extends to both physical and psychological health. For this reason, you should consider the following points when responding to an instance of racism in the workplace.
Respond Immediately
Several problems arise if you do not appropriately respond to an instance of racism in your workplace. Namely, you may indirectly normalise racial discrimination. This in turn may affect your employees’ wellbeing.
First and foremost, you should support affected employees. This can include:
- providing them with paid leave;
- removing the racist employee from the workplace; and
- assuring them that you are responding to the matter.
Depending on the circumstances, it may then be appropriate to approach the racist employee. You should tell them how their behaviour is affecting other employees and the potential consequences of their actions.
However, where this approach may not be appropriate in all circumstances, it is important that you conduct an investigation into the matter. You should:
- obtain details of the discrimination;
- record it in writing;
- note the time and date of the incident; and
- the names of any witnesses.
Disciplinary Action
Where an employee’s racist conduct breaches workplace policies, you may take disciplinary action. This covers a wide range of activities you can take to respond to serious issues in the workplace.
While the types of disciplinary action can vary, it usually involves issuing your employee a written warning. If your employee accumulates a number of warnings and fails to rectify their behaviour, this could provide grounds to terminate their employment.
When incidents of unacceptable behaviour do occur, employers should act promptly but also fairly. Therefore, if you are thinking of firing a racist employee, you must ensure you have:
- a valid reason for dismissing your employee concerning their workplace conduct;
- made this reason clear to your employee;
- given your employee the opportunity to respond;
- do not unreasonably refuse your employee’s request for a support person; and
- given a warning to your employee.
In any event, you should seek legal advice before you fire a racist employee.
Implement a Zero-Tolerance Policy
You should make it clear that racial discrimination can be unlawful under Federal, State and Territory Legislation. As such, you will not tolerate racist behaviour in your workplace.
That said, there are several policies that your business can implement setting out what you expect regarding employee behaviour. These documents should also describe what action you can take against employees that engage in this behaviour such as warnings or even dismissal. Employers commonly communicate these policies through an Employee Handbook. You can also set out your expectations of your employees’ behaviour in separate policies which cover:
In addition to implementing a workplace policy that enforces a zero-tolerance approach to racism, you should provide your employees with training on the policy. This includes training modules similar to the Race Discrimination Training provided by the Australian Human Rights Commission. Depending on your policy, you might also provide training on reporting methods such as where employees should go if they do not feel comfortable reporting to the assigned individual.
In any event, a zero-tolerance policy is only effective when you enforce it. For this reason, it is important that you respond to instances of workplace racial discrimination immediately and do so in accordance with your workplace policy.
Continue reading this article below the formKey Takeaways
Racial discrimination occurs when someone treats a person or group of people less favourably than others based on their race, colour, descent or national or ethnic origin. As an employer, you have a duty of care to your employees to ensure their health and safety while they are at work. For this reason, you should:
- immediately respond to an allegation of racial discrimination by investigating the matter;
- take disciplinary action where an employee breaches workplace policy regarding discrimination; and
- in the absence of such a policy, implement and enforce a zero-tolerance policy on racial discrimination.
If you need help responding to an instance of racial discrimination in the workplace, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Racial discrimination occurs when someone treats a person or group of people less favourably than others based on their race, colour, descent or national or ethnic origin.
Whilst racial discrimination may provide grounds for dismissing an employee. However, you should seek legal advice before firing an employee to minimise your chances of facing an unfair dismissal claim.
We appreciate your feedback – your submission has been successfully received.
