Race Discrimination and the Workplace

This factsheet aims to provide information on what race discrimination looks like and what you can do if you have been racially discriminated against in the workplace.

Under the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Equal Opportunity Act 1984 (SA) (‘EOA’), it is unlawful to discriminate against someone because of their race.

Despite this, a 2021-2022 survey conducted by Diversity Council of Australia showed that 43% of racially marginalised non-white workers felt that racism in their workplace was common compared to just 18% of white workers. Additionally, one in two Aboriginal and/or Torres Strait Islander workers reported that they experienced discrimination or harassment in the last 12 months, which is twice as much as what was reported by non-Indigenous workers.[1]

In light of these experiences, it is important for workers to be vigilant of racism at work and be aware of their right to a safe, non-discriminatory workplace.

What is race discrimination?

Race discrimination is when someone is treated negatively or less favourably because of their:

• Race;
• Colour;
• Nationality (past or present);
• Country of origin; or
• Ancestry.[2]

Both the RDA and EOA explicitly make it unlawful to discriminate against workers because of their race.[3] This includes discrimination against job applicants, employees, agents, independent contractors and contract workers.[4]

Direct race discrimination

Direct race discrimination is when someone blatantly treats you negatively or unfavourably because of your race. This can include making racist comments or jokes, stereotyping or excluding someone because of their race.

Examples

• Michael owns a dental clinic and is looking to hire a new receptionist. When Maggie, an Aboriginal Kaurna woman who has 3 years of experience in a similar role, applies for the job, Michael declines. Michael informs her that because she is an Aboriginal woman, she may feel left out because all the other staff are not Aboriginal, and so she would not be a good fit for the team.
• Asake is an international student from Nigeria and works part-time as a retail assistant. In the staff break room, his coworkers often imitate his accent and suggest that he should return to Nigeria if he can’t ‘speak like an Australian’.

Indirect race discrimination

Indirect race discrimination is less obvious and happens when a policy applies equally to everyone, but in practice disadvantages people because of their race.

Example

• A hair salon has a strict ‘no hats or head coverings’ policy for all staff because they want to showcase their staff’s hairstyles. This policy can be discriminatory towards people who wear religious head coverings or people with disabilities who would prefer to keep their heads covered.

Lawful discrimination  

There are some limited situations where discrimination is not unlawful.

The RDA and EOA allow for ‘special measures’[5] or ‘schemes or undertakings’[6] to be carried out for the benefit of people of a particular race, particularly races that historically have been disadvantaged or discriminated against. This is to ensure substantive equality with other groups.

For exemptions not already covered by the EOA, applications can be made to the South Australian Civil and Administrative Tribunal (‘SACAT’).[7] SACAT can grant exemptions for up to three years.

Examples of special measures

• Minimum quotas for the number of people of colour to be hired, particularly in areas where they are underrepresented.
• The ABSTUDY scheme, which provides payments for Aboriginal or Torres Strait Islander students to undertake study or training.

Employers’ obligations and liability

Employers have a legal obligation to take all reasonable steps to prevent race discrimination. Employers can also be vicariously liable and legally responsible for the discriminatory actions of their employees and agents if reasonable steps are not taken.[8]

For more information on minimising liability and ensuring all reasonable steps have been taken, please see our other factsheet ‘Creating a Racially Inclusive Workplace’.

What to do if you have been discriminated against because of your race?

There are a few different legal options, and it is important to seek legal advice before deciding which option is best for your circumstances. Whatever you do, do not resign before getting advice as this will affect your options.

Complaints

You can make a complaint to either the Australian Human Rights Commission (AHRC) or the Equal Opportunity Commission (EOC).

AHRC

The AHRC handles complaints made under Commonwealth legislation (eg the RDA). You have 24 months to make a claim in the AHRC.[9] The AHRC complaint can be made by completing this form: https://humanrights.gov.au/complaints/make-complaint.

Once the AHRC receives your complaint, it will be assessed and investigated. It may also be conciliated. If the complaint is terminated, you may be able to appeal the decision to the Federal Court of Australia.

For more information, see the ARHC’s website: https://humanrights.gov.au/complaints#main-content.

EOC

The EOC handles complaints made under South Australian legislation (ie the EOA). You have 12 months to make a claim in the EOC.[10] The EOC complaint can be made by completing this form: https://www.equalopportunity.sa.gov.au/complaints/making-a-complaint.

Once the EOC receives your complaint, they will assess it to see if it is covered by the legislation. If the complaint is accepted, it will proceed to conciliation. If the complaint is declined, it may be referred to SACAT.

For more information, see the EOC’s website: https://www.equalopportunity.sa.gov.au/complaints/complaint-process.

Workers Compensation

Under the South Australian workers compensation system, workers can receive compensation for not just physical injuries, but psychiatric injuries too.[11] This is a no-fault system, which means you can be compensated regardless of whose fault it is.

If you suffer from a psychological injury as a result of experiencing racial discrimination in the workplace, you may be entitled to make a workers compensation claim. You will have to demonstrate that work ‘was the significant contributing cause of the injury’.[12]

General Protections Claim

If you have been dismissed or demoted or have experienced some other form of adverse action because of your race, you may be entitled to make a general protections claim in the Fair Work Commission.

Please note, where you have been dismissed, you will have 21 days from the date of dismissal to file a claim.

With so many options, how do you know which one is right for you? Contact the Working Women’s Centre on 08 8410 6499 to get legal advice and our lawyers will walk you through which one(s) are best for you.

[1] Diversity Council Australia, Inclusion@Work Index 2021-2022: Mapping the State of Inclusion in the Australian Workforce (Report, 2021) https://www.dca.org.au/sites/default/files/synopsis_2021-22_inclusionwork.pdf.

[2] RDA s 9, EOA s 5, Pt 4

[3] RDA s 15; EOA Pt 4 Div 2

[4] RDA s 15; EOA Pt 4 Div 2

[5] RDA s 8

[6] EOA s 65

[7] See https://www.sacat.sa.gov.au/case-type/equal-opportunity/exemptions-to-the-equal-opportunity-act

[8] RDA s 18A, EOA s 91

[9] AHRCA s 46ph

[10] EOA s 93

[11] Return to Work Act 2014 s 4.

[12] RTWA s 7.