Mr S was an employee, born and bred in New Zealand but of Indian heritage. During the course of his 3 months’ employment, he was addressed using a racially derogative term by his employer, including in front of others, and, in another incident, his employer, again in front of others, ridiculed how “Indians bobbed their heads in their conversations”.
The employer proceeded to show a You Tube video clip that made fun of Indians doing that. When Mr S raised these issues with a more senior employee, he told him it was not worth raising the issue with his employer and that it would be easier to instead tolerate the racist comments.
Mr S brought a personal grievance on the grounds of racial harassment. Mr S’s employer maintained that they did not know that what they were saying was offensive and they never intended to hurt or offend Mr S. They also claimed that Mr S joined in the office banter and referred to himself in a way that could be racially offensive and that Mr S himself made jokes about Indians on social media. Mr S agreed that he participated in office banter but said it was his attempt to “take the sting” out of the comments and language being used. He further said he didn’t speak up during his employment because his employment agreement contained a 90-day trial clause and he was concerned about the “authoritarian way” the business was run. In relation to social media comments, he said that this was communications with close friends with whom he had a shared culture.
Was this racial harassment?
What is racial harassment?
Racial harassment is defined in the Employment Relations Act 2000 as a situation where an employer (or the employer’s representative) uses language that directly or indirectly:
- expresses hostility against, or brings into contempt or ridicule, the employee on the ground of race, colour, or ethnic or national origins of the employee; and
- is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
- has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.
A similar definition is found in the Human Rights Act 1993.
An employee may raise a personal grievance with the Employment Relations Authority or lay a complaint with the Human Rights Commission in respect of any racial harassment they may have suffered.
Examples where racial harassment has been found
In the above example, racial harassment was established. It was not a defence that the employer had not intended to offend. Nor was it a defence that Mr S had not advised his employer of the offence and hurt he had experienced at the language used. This was considered understandable where he was subject to a 90 day trial. Further, the fact Mr S also participated in the office banter and made comments about Indians himself on social media was not determinative. The Authority accepted he felt worn down by his employer’s language such that he could not combat it and felt he had to join in. Further, the Authority appeared to accept Mr S’s explanation for his comments on social media.
In all cases, the Authority found that the employer’s comments were offensive and unwelcome. It found Mr S was exposed, throughout the majority of employment, to language that brought him into contempt or ridicule on the basis of his race. He was offended and hurt by that language and the ongoing nature of his employer’s use of that language affected his enjoyment of his job.
As Mr S had not lost wages as a result of the harassment, he was not awarded lost remuneration but he was awarded $10,000 for hurt, humiliation and distress (this decision was in 2018 – a greater award might possibly be made now).
Other examples:
- an employee who was called various negative descriptors on the basis of being Irish by a fellow employee, who was found to be a representative of the employer – these were examples of hostility and bringing the employee into contempt and ridicule on the grounds of his national origins, which caused distress to the employee and detrimentally affected his job satisfaction.
- an employer who was found to have attributed issues in the employee’s written work to his race or ethnicity was also found to have racially harassed the employee. The employee was ridiculed on the grounds of his race or ethnic origin and there was no evidential basis to attribute issues with his work to his race or ethnic background.
Examples where racial harassment has not been found
- an employer, as part of an informal performance improvement meeting, commented that the employee spoke better English than some other Indians and also noted his lack of an accent. It was held that, while the comments may have caused the employee some offence, they did not constitute racial harassment. This was because the comments were not made in a hostile or contemptuous way and they did not ridicule the Indian race or the employee.
- an employee who was referred to by use of a racial slur by his manager was not racially harassed, as the employee engaged in similar language in the workplace – he was part of the “language culture”. While the language used was “racial language”, the Authority held that, in order for racial harassment to be made out, the language would need to be hurtful or offensive to the employee. In addition, that language would need to cause detriment to the employee’s employment, job performance, or job satisfaction. In this case, there was insufficient evidence of this, it being apparent that the employee encouraged the use of the language, and in fact engaged in it, himself.
Takeaways
For racial harassment to be made out, the comments by the employer must be delivered in a hostile way or ridicule the employee on the grounds of race, colour, or ethnic or national origins of the employee. In addition, the comments must be offensive to the employee and must have a detrimental effect on the employee’s employment, job performance, or job satisfaction. This can be a relatively high standard to meet, shown by the above cases.
Nonetheless, employers should take allegations of racial harassment very seriously, including appropriately investigating concerns raised and taking all reasonably practicable steps to safeguard employees from being subject to the same conduct again. Employers should also have a clear racial harassment prevention policy in place, developed in consultation with employees so as to reflect their workplace and which both employees and the employer are familiar with (rather than it being filed up away in a drawer, never to be looked at again). One option is to provide a copy to employees at the start of an employee’s employment or attach it to their employment agreement.
This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:
- Hannah Carey, Senior Counsel – hannahcarey@parryfield.com
