Racial Harassment At Work: How To Identify, Prevent And Respond

What Racial Harassment Is

Racial harassment is unwanted behaviour directed at a person because of their race, colour, descent, or national or ethnic origin, in circumstances where a reasonable person would expect that behaviour to offend, humiliate or intimidate them.

Three things about that definition matter more than people expect.

The test is objective. It does not turn on whether the person doing it meant harm.

“It was a joke” and “everyone knows I don’t mean it” are not defences, because the question is what a reasonable person in the recipient’s position would expect the conduct to do.

It does not have to be repeated. One incident can amount to racial harassment if it is serious enough.

That is different from workplace bullying, which under the Fair Work Act requires repeated unreasonable behaviour.

It does not have to be aimed at anyone in particular.

A racist joke told to a room, a slur used about a customer, or a stereotype repeated about a nationality can create a hostile environment for anyone in that room, whether or not they were the target.

Racial Harassment, Racial Discrimination and Racial Vilification

These three terms get used interchangeably and they are not the same thing. Getting them straight changes how a complaint is handled and where it goes.

The same incident can be all three at once. A supervisor who uses a slur in front of the team, then leaves that worker off the roster, has committed racial harassment, racial discrimination and possibly racial vilification in one afternoon.

Handle it as all three, because a complaint can be run on any of them.

For the discrimination side of this, our guide on how to deal with racial discrimination in the workplace covers unfavourable treatment in decisions, and examples of racial discrimination at work sets out what it looks like in practice. This article stays on the harassment side.

How to Identify Racial Harassment at Work

Racial harassment is rarely a single dramatic event that everyone recognises.

It usually arrives as a pattern of small things that each look deniable on their own.

Verbal Conduct

• Slurs, name-calling and racist “banter”
• Jokes and memes that trade on racial or ethnic stereotypes
• Mocking an accent, a name, or the way someone speaks English
• Comments about where someone is “really” from, or telling them to go back there
• Assumptions about ability, work ethic or intelligence tied to national origin

Physical and Environmental Conduct

• Threatening gestures, physical intimidation or violence motivated by race
• Racist graffiti, images or material displayed anywhere workers can see it
• Damage to or interference with a worker’s belongings
• Deliberate exclusion from conversations, breaks, training or social events

Online and Written Conduct

• Racist content in Teams, Slack, WhatsApp groups or email chains
• Posting about a colleague’s race on social media, including from a personal account where there is a sufficient connection to work
• Photoshopped images or nicknames circulated among a team

Structural and Everyday Conduct

• Consistently giving the least desirable tasks to workers of one background
• Holding one group to a higher standard in performance conversations
• Repeatedly mispronouncing or refusing to use someone’s name
• Treating a worker as a spokesperson for their entire community

The Law: Which Acts Apply and Who Enforces Them

Australia has no single racial harassment statute. Four separate frameworks apply at once, and a worker can use more than one.

Two points employers get wrong often enough to be worth stating plainly.

Vicarious liability

Under the Racial Discrimination Act an employer is liable for racial harassment committed by a worker in connection with their employment, unless the employer can show it took all reasonable steps to prevent it.

“We had a policy” is not by itself all reasonable steps. Training records, a working complaints process and evidence that leaders acted on earlier reports are what make that defence stand up.

The positive duty does not cover race

The positive duty introduced by the Respect at Work reforms sits in section 47C of the Sex Discrimination Act.

It requires organisations to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and related victimisation.

It does not extend to race. Plenty of organisations assume one positive duty covers every attribute.

It does not, and the WHS duty is the one that fills the gap for racial harassment.

Section 18C and Racial Vilification Explained

Section 18C of the Racial Discrimination Act is the provision most people have heard of and fewest have read.

It makes it unlawful to do an act, otherwise than in private, where the act is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and is done because of race, colour or national or ethnic origin.

The phrase “otherwise than in private” does a lot of work.

An act is taken not to be done in private if it communicates words, sounds, images or writing to the public, is done in a public place, or is done in the sight or hearing of people who are in a public place.

A shared work area, a group chat with a dozen colleagues in it, or a noticeboard in a depot can all clear that bar.

Section 18D carves out exemptions for things done reasonably and in good faith, including artistic works, genuine academic or scientific purposes, and fair reporting or fair comment on a matter of public interest.

Those exemptions rarely help in an employment context, because racist conduct at work is seldom done reasonably and in good faith for one of those purposes.

Most states and territories also have their own racial vilification provisions, and some create criminal offences for serious vilification involving threats of physical harm.

Check the position in your jurisdiction rather than assuming the federal provision is the whole picture.

What the Evidence Says About Racism in Australian Workplaces

Racial harassment is not a rare event that happens to other organisations.

Put the first and third rows together. Nearly nine in ten workers say racism is a problem at work, and fewer than three in ten say their employer is doing anything active about it. That gap is the risk.

It is also the reason racial harassment tends to surface for the first time in an exit interview, a Fair Work claim or a Human Rights Commission conciliation rather than in an internal report.

Why Racial Harassment Goes Unreported

If your complaints register has no racial harassment in it, the safest assumption is that your reporting path is not trusted, not that the conduct is absent.

• Fear of being labelled: Workers worry that raising race will mark them as difficult, oversensitive or political.
• Visa and job insecurity: Workers on temporary visas, in casual roles or in labour hire often believe, sometimes correctly, that complaining puts their work at risk.
• The harasser is the manager: When the person to report to is the person doing it, most people do nothing.
• Nothing happened last time: One unresolved complaint teaches a whole team that reporting is pointless.
• It does not feel serious enough: Workers minimise single comments, so a pattern never gets assembled.
• No one is sure it counts: If your policy never uses the words racial harassment, workers will not know it is covered.

Each of those is fixable, and each fix is cheaper than a conciliation.

How to Prevent Racial Harassment

Prevention is a work health and safety exercise, not a communications exercise.

Treat racial harassment the way you would treat any other hazard: identify it, assess it, control it, review it.

1. Name It in Your Policy

Your policy should define racial harassment, give real examples including the online and everyday kinds, state that a single incident can be enough, and set out every reporting path with a named alternative for when the manager is the problem.

If the word race does not appear in your behaviour policy, the policy does not cover this.

2. Train Everyone, and Train Managers Separately

All workers need to recognise racial harassment, understand that intent is not the test, and know how to report.

Managers need more: how to receive a disclosure without minimising it, what to do in the first 24 hours, and what not to promise.

Sentrient’s EEO training course and respect at work training cover the worker-level knowledge, and the diversity, equity and inclusion course builds the cultural layer underneath it.

3. Assess Racial Harassment as a Psychosocial Risk

Under the model WHS Regulations, a PCBU must manage psychosocial risks, and Safe Work Australia names bullying, harassment, discrimination, aggression and violence among the psychosocial hazards that create them.

That makes racial harassment a hazard on your risk register, with controls, an owner and a review date. Our guide to psychosocial risk management sets out how to run that process.

4. Make Reporting Genuinely Safe

Offer more than one channel, including one that bypasses the line manager.

Say plainly what happens after a report and how long each step takes.

Protect people from victimisation and be seen to do it, because victimisation after a complaint is itself unlawful.

5. Act on the Small Things

The joke that goes unchallenged sets the standard for the team.

Leaders who interrupt low-level conduct in the moment prevent most of the serious conduct from ever forming.

This is the cheapest control available and the one most often skipped.

6. Look for Patterns in Your Own Data

Review complaints, exit interviews, engagement survey comments and turnover by team.

Racial harassment shows up as clusters long before it shows up as a formal complaint.

How to Respond to a Racial Harassment Complaint

The first response shapes everything that follows. Get it wrong and you convert a manageable problem into a claim.

1. Take it seriously in the first conversation: Thank the person, do not debate whether it was meant that way, and do not ask them to consider the other person’s perspective. Record what they tell you in their words.
2. Ask what they want to happen, then explain what you must do: Some people want it to stop, not a formal process. Be honest that serious conduct may require action regardless, and never promise an outcome you cannot control.
3. Deal with immediate safety: Separate the parties if needed by changing the respondent’s arrangements, not the complainant’s. Moving the person who complained reads as punishment and is a common trigger for a victimisation claim.
4. Investigate properly and impartially: Use someone with no stake in the outcome, put the allegations to the respondent, give them a real chance to answer, interview witnesses, and keep the standard of proof at the balance of probabilities.
5. Protect against victimisation: Check in with the complainant during and after. Victimisation is unlawful in its own right and often does more damage than the original conduct.
6. Decide, act and tell people something: Take proportionate disciplinary action where the conduct is substantiated. You cannot share the detail of another person’s discipline, but you can confirm to the complainant that the matter was substantiated and action was taken.
7. Offer support: Employee Assistance Program access, time, and where relevant a referral for counselling.
8. Fix the conditions: Ask what let this happen and what else it is happening to. Close the loop with a control, not just an outcome.

What a Worker Can Do

Workers experiencing racial harassment in Australia have several avenues, and it is worth being accurate about them.

• Document everything: Dates, times, exact words, who was present, and the effect on you. Keep it somewhere that is not your work account.
• Report internally: Use your organisation’s policy, and use the alternative channel if the manager is involved.
• Complain to the Australian Human Rights Commission: The Commission handles complaints under the Racial Discrimination Act and attempts conciliation. If conciliation does not resolve it, the matter can proceed to the federal courts.
• Complain to your state or territory anti-discrimination body: Every jurisdiction has one, and it may suit better depending on where the conduct occurred.
• Apply to the Fair Work Commission: Where adverse action was taken because of race, the general protections provisions apply.
• Notify the WHS regulator: Where the employer is failing to manage a psychosocial hazard.
• Get advice. A union, a community legal centre, or a lawyer. Time limits apply to most of these avenues, so get advice early rather than late.

Complaints about racial harassment in Australia are made to Australian bodies.

If you have read otherwise anywhere, including on an employer’s own intranet, the Australian Human Rights Commission and your state or territory body are the correct starting points.

A Racial Harassment Prevention Checklist

• Your behaviour policy names racial harassment and gives examples, including online conduct
• The policy states that a single serious incident can be enough
• There is a reporting path that does not go through the line manager
• All workers have completed EEO or respect at work training and you hold the records
• Managers have had separate training on receiving and handling a disclosure
• Racial harassment appears on your psychosocial risk register with controls and an owner
• You have run a survey or listening process that would surface it
• Complaints, exit interviews and turnover are reviewed for patterns at least quarterly
• Leaders visibly interrupt low-level conduct rather than waiting for a complaint
• Victimisation protections are written down and checked after every complaint
• You could produce evidence of all reasonable steps if a claim landed tomorrow

The last item is the one that decides vicarious liability. If you cannot evidence it, you do not have it.

Where to Start

Open your behaviour policy and search it for the word race. If it is not there, that is the first fix and it takes an afternoon.

Then look at your complaints register. An empty register is not a clean record, it is a measurement problem.

Fixing the reporting path so that racial harassment can surface early is worth more than any statement of values you could publish this quarter.

Frequently Asked Questions

1. What Is Racial Harassment in the Workplace?

Racial harassment is unwanted conduct directed at a worker because of their race, colour, descent, or national or ethnic origin, that a reasonable person would expect to offend, humiliate or intimidate. It covers slurs, jokes, exclusion, racist material, online conduct and physical intimidation.

2. Is Racial Harassment Illegal in Australia?

Yes. It is unlawful under the Racial Discrimination Act 1975 and equivalent state and territory anti-discrimination laws. It can also breach the general protections in the Fair Work Act and your work health and safety duty to manage psychosocial risks.

3. Where Do I Report Racial Harassment in Australia?

Report internally first if it is safe to do so. External avenues are the Australian Human Rights Commission, your state or territory anti-discrimination body, the Fair Work Commission where adverse action was taken, and your WHS regulator. Australian complaints go to Australian bodies, not to overseas agencies.

4. Does Racial Harassment Have to Happen More Than Once?

No. A single incident can amount to racial harassment if it is serious enough. That distinguishes it from workplace bullying under the Fair Work Act, which requires repeated unreasonable behaviour.

5. Can an Employer Be Held Responsible for Racial Harassment by an Employee?

Yes. Employers can be vicariously liable for racial harassment committed by workers in connection with their employment, unless they can show they took all reasonable steps to prevent it. A policy alone is generally not enough. Training records, a working complaints process and evidence of action on earlier reports are what make the defence work.

6. What Is the Difference Between Racial Harassment and Racial Vilification?

Racial harassment is conduct directed at a person because of race that offends, humiliates or intimidates. Racial vilification under section 18C is a public act, done because of race, that is reasonably likely to offend, insult, humiliate or intimidate. The key difference is that vilification requires the act to be done otherwise than in private, which a shared work area or a group chat can satisfy.

7. Does the Positive Duty Cover Racial Harassment?

No. The positive duty in section 47C of the Sex Discrimination Act applies to sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and related victimisation. It does not extend to race. The work health and safety duty to manage psychosocial risks is the equivalent obligation that captures racial harassment.

8. What Should a Manager Do in the First 24 Hours After a Complaint?

Listen and record it in the person’s own words, do not investigate on the spot or take sides, address immediate safety by adjusting the respondent’s arrangements rather than the complainant’s, explain what happens next and when, and escalate to the person responsible for investigations under your policy.

Read More About Workplace Harassment:

• The 12 most common types of workplace harassment in Australia
• How to identify, prevent and respond to psychological harassment in the workplace
• How to deal with racial discrimination in the workplace
• What are examples of racial discrimination in the workplace
• Psychosocial risk management: treating mental health risks like any other workplace risk
• How to deal with discrimination in the workplace as an employer