Every worker has a right to feel safe in the workplace. If you are currently experiencing, or have experienced, racial discrimination or vilification in the workplace, Segelov Taylor Lawyers can assist to clarify your legal rights and help you seek a remedy.
What is Racial Discrimination?
Racial Discrimination, in broad terms, is the act of treating someone adversely or differently because of their race. There are a number of laws that make it illegal for you to be discriminated against because of your race.
Under federal and state anti-discrimination laws, employers have a responsibility to prevent any form of racial discrimination in the workplace and are required to have structures in place to prevent racial discrimination from taking place. The law covers all types of employers equally, whether you are full-time, part-time, on probation, or a trainee.
What is Racial Vilification?
Racial vilification (in general terms, hate speech related to race) is prohibited by various laws in different states. While the definition varies between laws, generally speaking, racial vilification is public conduct that may insult, offend or humiliate another on the basis of their race. Public conduct can include communications that are able to be witnessed by the public, such as in print, on the radio, or on the internet. Racial vilification can also occur on images of pieces of clothing, signs or flags, or else within other information that is shared to the public.
Laws That Prevent Racial Discrimination and Vilification
A number of specific laws, many with different features, processes and remedies, operate to prevent racial discrimination. These laws include:
- Commonwealth anti-discrimination laws;
- the Commonwealth Fair Work Act; and
- state anti-discrimination laws, such as the Anti Discrimination Act in New South Wales, or the Equal Opportunity Act in Victoria.
Many anti-discrimination laws recognize both “direct discrimination” and “indirect discrimination“. Direct discrimination involves treating a person less favourably because of the prohibited reason while indirect discrimination involves the imposition of a rule or requirement that has different impact on people because of a protected quality. For example, a requirement that employees be more than 6ft tall would indirectly discriminate against women, as men are disproportionately more likely to be more than 6ft tall.
Discrimination under Commonwealth Anti-Discrimination Laws
There are series of Acts that prohibit discrimination under Commonwealth law. These Acts are organised under the Australian Human Rights Commission Act. The specific Acts include the Racial Discrimination Act which prohibits racial discrimination and racial vilification.
The range of protections under Commonwealth law is more limited than under New South Wales law. Claims must be commenced within 6 months of the date of the discrimination or other act complained of.
The protections are also reproduced, at least in respect of direct discrimination, in the adverse action provisions of the Fair Work Act. There are different limitation periods in respect of these claims.
Discrimination under New South Wales Law
The primary anti-discrimination law in New South Wales is the Anti-Discrimination Act. The Anti-Discrimination Act prohibits a very broad range of discrimination in employment, as well as in the provision of services and government action.
Claims must be commenced within 12 months of the date of the discrimination or other act complained of.
Who Can Bring a Claim Under the Anti-Discrimination Act?
All employees, along with potential employees and subcontractors are entitled to bring a claim under the Anti-Discrimination Act. There is no threshold for a minimum period of employment or as to earnings. However, there may be some instances where claims cannot be brought under the state Act and must be brought under Commonwealth law.
Who Can Bring a Claim Under the Australian Human Rights Commission Act?
Most employees, along with potential employees and subcontractors are entitled to bring a claim under the Australian Human Rights Commission Act. Some state government employees are not entitled to bring a claim under the Commonwealth laws. There is no threshold for a minimum period of employment or as to earnings.
Discrimination under the Fair Work Act
Claims alleging discrimination are brought under the general protections provisions of the Fair Work Act, and are generally known as “adverse action” claims.
Under the Fair Work Act, the prohibited reasons are extended from personal attributes (race, age, sex, etc.) to also include workplace rights and industrial rights.
Adverse action claims involve allegations that a person has been treated unfairly (including by having their employment terminated) as a result of:
- a prohibited reason such as sex, race, age; or
- a person having exercised or proposed to exercise a workplace right;
- a person having exercised or proposed to exercise an industrial right, such as joined or participated in union activities.
Adverse action claims are more significant and costlier than unfair dismissal claims. Unlike unfair dismissal there is no cap on the amount of compensation that can be recovered and compensation can be recovered, if appropriate, for pain and suffering.
Adverse action claims must be commenced within 21 days of the termination of employment or 6 years if there is no allegation of termination.
Who Can Bring an Adverse Action Claim?
All employees (other than state government employees), along with potential employees and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or as to earnings
Segelov Taylor Lawyers Can Help
If you have experience racial discrimination or vilification in the workplace, Segelov Taylor Lawyers may be able to help. Our principal David Taylor is an accredited specialist in employment and industrial law and has 20 years of experience in handling employment and racial discrimination matters.