Language at work - what the Anti-Discrimination Act says
At the Board, we are getting an increasing number of
phone enquiries asking whether employers and goods
and services providers can insist that people always speak
a particular language in the workplace or business - most
commonly the language required is English.
Employers and others give many reasons for thinking
that this should be enforceable - speaking a language that
not every employee understands leads to suspicions
about what is being said; supervisors feel they are being
undermined when they can't understand what workers
are saying amongst themselves; people with English as a
second language will only improve their English skills if
they speak English as much as possible; they will also
often say to us that people who live in Australia, should
be prepared to speak the language common to everyone.
Under anti-discrimination Jaw, forcing employees,
clients or customers to always speak English may be
either direct or indirect race discrimination. Direct
United Nations Convention on the
Rights of the Child
The legal standing of children
under the Anti-Discrimination Act has
been raised recently with the interest
the NSW government has in the
United Nations Convention on the
Rights of the Child.
Children can lodge complaints
under the Anti-Discrimination Act.
The complaints lodged by children in
"1'
the past have reflected the principal
~
areas of life that are important to
children . Complaints have involved
discrimination or harassment at school, in their
neighbourhood, places of entertainment, shops, public
transport and small businesses.
f
The right of children to lodge complaints under the
Anti-Discrimination Act has been established by the
Equal Opportunity Tribunal, and confirmed on
appeal. The EOT ruled that children can have
complaints heard by the Tribunal providing a person
of full legal capacity bears responsibility for costs.
Complaints lodged by children under the AntiDiscrimination Act
1. A secondary school girl successfully challenged the
policy in her girls' school of not making education
about computers available which was available to her
twin brother at the boy's high school nearby. A
representative action extended the Equal Opportunity
Tribunal's decision that she had been discriminated
against to cover all the other girls in the school who
were also affected.
2. The parents of a boy with cerebral dysfunction
complained that the local primary school did not
provide him with remedial teaching. The Department of
School Education responded by providing the boy with
a program which satisfied his parents.
discrimination would occur when one or more employees
were treated differently from all other employees and
required to speak a particular language that isn't
characteristic of their ethnicity. For example, a worker from
an Arabic speaking ethnic group being told that she must
always speak English while workers from other ethnic groups
are allowed to speak their language of origin - whether
English or another language.
When a workplace, business or organisation has an
overall policy that says that only a particular language should
be spoken, this may be indirect race discrimination. Indirect
discrimination is where there is a rule or policy- for example,
that all employees speak English - that has an unequal impact
on different groups - in this example, different ethnic groups.
Of course, as with other types of indirect discrimination,
the instruction would be acceptable if it is "reasonable in all
the circumstances".
Employers also have a responsibility to provide a
workplace and workplace procedures that are safe. A
language, common to everyone in the workplace, might be
necessary for issuing and communicating instructions from
supervisors on occupational health and safety issues like
workplace safety procedures or the need to evacuate the
building in an emergency. Alternatively, the employer could
issue these instructions in the major languages used in the
workplace.
While anti-discrimination law is clear about the right of
employees to speak their language of choice, often the
employer has to deal with resistance from employees and
other managers when implementing this part of the law.
Education about race and racism is the key to getting people
to accept the rights of others to speak their language of choice.
Examples of advice we've given about language enquiries
1. An accommodation manager was insisting that all those
who stayed in the premises would have to speak English.
She believed that this would benefit the tenants, many of
whom were from overseas. The Board had already had a
number of phone enquiries about the situation when the
organisation which owned the premises contacted us for
advice. We advised them that this was likely to be indirect
race discrimination, and that we believed if they failed to
immediately correct the situation, a number of formal
complaints would be lodged. The organisation withdrew
the policy, and spoke with the manager about why it was
inappropriate.
2. An employer rang us wanting our permission to make all
his employees, who were from very many different ethnic
groups, speak English whenever they were at work. His
employees had agreed that they would try to speak English
while working whenever there was someone present who
didn't speak their first language, but insisted they had a
right to speak whatever language they chose at lunchtime.
We advised the employer that he could only insist that
employees speak English, whether working or at lunch,
when it was 'reasonable in all the circumstances' that they
should - and that only the Equal Opportunity Tribunal had
the power to decide what was 'reasonable'.