Race case studies

Summary
A five-year-old boy of Cook Island descent commenced school in 2020 at a Christian private school attended by his older sister. It is a Cook Island custom to not cut the firstborn son’s hair until a hair-cutting ceremony is held. The boy’s parents planned to hold a ceremony the following year when the boy would be aged seven. In the meantime, for school, the boy wore his hair in a neat bun. The school uniform policy requires boys’ hair to be cut above the collar. The boy’s parents were given notice that the boy would be unenrolled if his hair was not cut and worn in accordance with the school uniform policy.

The tribunal found that the hair-cutting ceremony for the eldest son is a tradition or cultural practice associated with the Cook Island/Niuean culture, and part of that cultural practice is that the ceremony should take place at a time chosen by the parents. The timing for the ceremony in this case was substantially and genuinely motivated by, and in furtherance of, the culture that the boy’s parents seek to practise. The tribunal held that in the circumstances, the cultural practice and its timing is a characteristic of the attribute of race.

The tribunal held that the threat to unenroll the boy amounted to excluding him from the school, as well as unfavourable treatment in connection with his education. It said that excluding a child from school is a serious step to take, and has the potential to cause dislocation, emotional distress and embarrassment, and long-lasting effects on the child’s perception of their place in a community. In balancing the impacts of the school uniform policy on the boy with the disciplinary purpose of the policy, the tribunal considered the application of the policy in this case was not a reasonable requirement. It is not reasonable to apply dress standards without exception, where the exception is required for reasons based on race.

Rules regarding appearance, such as the school uniform policy, are not regarded as discriminatory merely because the rules are not identical for males and females, if taken as a whole, one sex is not treated less favourably than the other. In this case, the tribunal considered the policy as a whole, and concluded that it does not treat boys less favourably than girls.

In conclusion, the tribunal found there had been unlawful discrimination of the boy on the basis of race, but not on the basis of sex.

The tribunal did not award compensation, as the boy had been allowed to attend school without having his hair cut, and there was no suggestion that the boy had suffered any injury or emotional distress. However, the school was ordered to make a private written apology to the boy’s mother, and the tribunal ordered that insofar as the uniform policy may form part of a contract, it is void to the extent that it imposes an obligation on the boy to cut his hair.

Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 (10 July 2020)

Appeal
The school appealed the decision. The appeal tribunal found that the tribunal had made a mistake in applying the test for direct discrimination. It found that non-compliance with the uniform policy was part of the objective circumstances of the school’s treatment of the child rather than a characteristic of the child’s race. The proper comparator for direct discrimination was therefore a boy who had his hair in a bun for reasons other than race and cultural practice, who did not comply with the uniform policy. The appeal tribunal also found that the tribunal made a mistake in failing to consider whether the reason for the treatment was race.

The appeal tribunal concluded that when the test was correctly formulated and applied, there was no direct discrimination.

However, the appeal tribunal considered there was no mistake in the tribunal’s findings of indirect discrimination. This means the complaint was still upheld and the orders that the tribunal made remain in force.

Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118 (9 August 2022)

Summary
A woman who was of Chinese origin, and who had limited ability to communicate in English, alleged that WorkCover failed to provide an interpreter for her when communicating about her claim. Her complaint was dismissed by the tribunal and she appealed on the basis that the tribunal was wrong about the law.

The Commission intervened in the appeal and made submissions about language as a characteristic of race, and imposing a term in indirect discrimination. Section 8 of the Anti-Discrimination Act 1991 extends the meaning of discrimination on the basis of an attribute to include the characteristics of an attribute.

The decision of the tribunal was set aside on two of the five grounds of appeal, both of which were questions of law. The Appeal Tribunal found:

1. The tribunal was unable to properly consider whether the complainant had demonstrated that a term had been imposed on her, because it did not approach the complaint on the basis that having poor English skills was a characteristic of the attribute of race, and that it was possible to indirectly discriminate against a person on the basis of that characteristic.
2. For the direct discrimination claim, the tribunal incorrectly identified the comparator as a non-Chinese person with a limited command of English. It was incorrect to include the limited command of English, because this was a characteristic of race that section 8 protects.

In discussion about direct discrimination and section 8, the Appeal Tribunal considered:

• Section 8 should be applied in general terms rather than specifically to the circumstances of the complainant;
• It is a characteristic of race within the meaning of section 8, that a person with the attribute of race may need assistance because they have poor English skills. Not having English as a first language and therefore having poor spoken and written English skills, and therefore possibly needing assistance with English, are often imputed to a person with the attribute of race; and
• The correct hypothetical comparator in this case is a person in the same or not materially different circumstances as the complainant, but without her attribute of race, and without the characteristic of possibly needing assistance because of poor English skills.

The decision to dismiss the complaint was set aside, and the complaint was remitted for reconsideration before the same tribunal members who heard it at first instance.

Xi v WorkCover Queensland [2016] QCATA 134 (23 May 2016)

Summary
In an argument with a solicitor, a client who was of Bosnian ethnic origin, used the word Nazi , and the solicitor retaliated saying " You are friends of Nazis" .

The client complained of race discrimination in the provision of goods or services.

The tribunal said that in the context, the statement by the solicitor was a rebuke or retort in response to a malicious statement, and the solicitor would have responded in a similar fashion if someone not of Bosnian ethnic origin had implied he was a Nazi.

Joldic v Adams Luca [2005] QADT 36  (1 December 2005)

Summary
A man who worked in a factory as a labourer/process worker complained he was discriminated at work.

Approximately 80% of workers in the factory were Spanish-speaking, most of whom were of Salvadorean origin. The Spanish-speaking workers were referred to as bloody Mexicans , lazy Mexicans , fucking Mexicans and wogs . The terms were not used about non-Spanish-speaking workers. Two co-workers were the main offenders, however the supervisor and factory manager also referred to the Spanish-speaking workers as Mexicans .

The tribunal accepted that the terms were used in a derogatory way to treat workers of Salvadorean origin less favourably at work, and therefore represented discrimination which is prohibited by the Act.

(Complaints about other conduct were not accepted as constituting discrimination.)

The tribunal awarded the man $1,500 for hurt and humiliation.

Rodriguez Rivas v Allerton Investments Pty Ltd [1997] QADT 6 (31 January 1997)

Summary
The complainant was employed as an assistant chef in a care facility and alleged that a colleague had repeatedly subjected her to demeaning comments about people of Indian heritage, engaged in intimidating behaviour, and would throw items around in her presence. The conflict escalated until an altercation between the complainant and her colleague. The complainant had reported her colleague’s conduct multiple times to a number of supervisors, who took no steps in response to her complaint.

The company said in response to the complaint filed with the Commission that the employment of the woman’s colleague and a number of her supervisors had been terminated, but did not otherwise admit to most of the incidents alleged in the complaint. The company and the complainant came to an agreement including general damages and an apology to the complainant for her treatment in the workplace by her colleague and the inaction of her immediate supervisors.

Summary
The complainant, who was of North African descent, alleged that he was subject to racist remarks from co-workers and later his supervisor. This included: calling him offensive names, such as frog , Borat , and boat person ; asking if he had spent time in a detention centre; and mimicking the complainant’s accent. Also, the complainant claimed that his direct supervisor commented negatively about his religious customs.

The complainant also alleged he had been subjected to sexual harassment, including making jokes about performing oral sex on his supervisor and customers to finalise sales. The complainant eventually resigned from his position after his complaints did not resolve the issues.

At conciliation, the supervisor refuted the allegations raised against him, and said that his working relationship with the complainant had initially been a positive one in which they enjoyed working together, but that the complainant had performance issues. The representative from the organisation expressed his shock at the complaint and his disbelief that there was a poor workplace culture within his organisation, and agreed to remedies to support staff.

The parties agreed on the following settlement during conciliation:

• a written apology by the corporate respondent
• a written statement of regret by the individual respondent
• financial compensation
• training for 250 staff on the Anti-Discrimination Act, and the internal and external complaint mechanisms available to all staff.

Summary
The complainant identified as Pakistani race and was engaged under a verbal agreement as a kitchen hand and delivery driver. Rates of pay were not discussed, and one month after commencing the complainant raised questions about pay rates, which were ignored.

The complainant then discussed wages with co-workers who advised they were being paid more than the complainant. The complainant alleged that the only exception to the rates of pay were workers of Pakistani extraction who were paid less per hour than other workers. When the
complainant subsequently approached the employer to request underpaid wages, they were asked to sign a statutory declaration and were subjected to physical violence. The respondent agreed to:

• implement an anti-discrimination policy in the workplace
• ensure all managers received antidiscrimination
  training, and
• pay financial compensation to the complainant.

Summary
The complainant, with a group of 17 friends, all of South-East Asian descent and appearance, paid entry fees and entered an entertainment venue.

After the complainant had bought a drink, the security staff approached him and instructed him to leave. When he asked why the guard replied, There was an incident with some folks last week, and the owner doesn't want to deal with you today. When he responded that he and his friends could not have been involved with the previous week's incident, the guard said, He (the owner) doesn't care; he doesn't want to deal with you folks today. The owner said there's too many Orientals here for his liking. I'm just doing my job and listening to the boss. A minimum of 30 to 40 Asian people were forced to leave the venue.

At the conciliation conference, the owner who had given the directions for the complainant and others to leave explained that the reason for their removal was because he thought they were associated with some people of South-East Asian appearance he had found snorting cocaine in the toilets.

The owner apologised for the misunderstanding, agreed to implement an anti-discrimination policy for the venue, agreed to anti-discrimination training for staff, and repaid the complainant his entry fees plus his taxi fare. The complainant did not want financial compensation for his experience, but wanted to ensure that the venue personnel were aware that the conduct was unlawful.

The venue owner offered to pay a nominal amount to the complainant or a larger sum as a donation to a charity of the complainant's choice. The complainant accepted the charity donation.

Summary
The complainant was a man who arrived in Australia as a refugee from El Salvador.

He alleged race discrimination during his ten month employment as a labourer in a manufacturing business. He claimed that his supervisor called him highly offensive names on a daily basis, became impatient with him or made fun of his English language skills, and generally treated him less favourably than other workers.

The complainant raised his concerns with his employer, who did little to remedy the situation. The complainant claims he resigned his employment following racial harassment by his supervisor.

At the conciliation conference the supervisor provided an emotional apology to the complainant acknowledging that he had treated the complainant unfairly. Although the company expressed a wish for the complainant to return to their employment, the complainant accepted a later financial offer of compensation and an apology for the hurt and humiliation experienced by him.

Summary
The complainant alleged that a co-worker had racially abused him and made threats of violence. He complained to the employer and the employer investigated the complaint and found parts of it to be substantiated. The employer transferred the co-worker to another worksite and required him to attend anger management counselling. He was also given a written warning that his employment would be terminated if there was any further similar behaviour, and he apologised to the complainant.

The employer provided the complainant with counselling, but he had taken sick leave as a result of the stress the event had caused. The complainant had expected the co-worker to be dismissed immediately, and he felt that his employer had not treated his complaint with the seriousness it deserved. He made a complaint to the Commission.

Before the conciliation conference the co-worker provided a written response in which he admitted the events, with some minor differences about the context in which they occurred. The written response included an apology to the complainant.

At the conciliation conference the complainant talked about the effect that the incident had on him, and his ability to cope at work and at home. The co-worker reiterated his apology, and disclosed that he also had been the subject of racial abuse in the past which made him more ashamed of what he had done to the complainant. The complainant accepted the apology.

The employer agreed to:

• restore the complainant's sick leave balance (8 days) that he had before taking sick leave because of the incident;
• make a short educational video for use in workplace toolbox talks in which the complainant would speak about the effect on workers of race discrimination in the workplace; and
• provide formal training about discrimination and workplace harassment on a rotational basis throughout its many worksites.