The lesson from Roseanne for New Zealand employers
Roseanne Barr's show was hugely popular, but that didn't stop it being canned after its star made a racist tweet about Valerie Jarrett, a former adviser to Barack Obama
OPINION: Roseanne Barr's revival was short-lived.
Her rebooted TV show, Roseanne, was axed after she made a racist tweet about Valerie Jarrett, a former adviser to Barack Obama. The tweet is not worth repeating but suffice to say it was followed by widespread condemnation from her co-stars and the public.
The reaction was swift from ABC, the network that airs Roseanne, which took just over one day to make the decision to cancel the show. This was despite it being the most watched show in America. The network's president was short and to the point, calling Barr's tweet "abhorrent, repugnant and inconsistent with our values".
Whilst the tweet was not work-related, ABC was obviously concerned about the damage to its image and reputation as a result of its association with Barr.
The same approach may justifiably have been taken in New Zealand where employees who engage in racist behaviour, both inside and outside the workplace, can be subject to disciplinary action.
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Where the conduct occurs outside the workplace, the issue will be whether it has an adverse impact on the employer's reputation and business. This can be difficult to prove and generally depends on the action becoming public.
Racist conduct which occurs within the workplace, and which is directed at another employee, could amount to racial harassment as defined in the Employment Relations Act and Human Rights Act. Where this is established, it can justifiably result in the dismissal of the perpetrator, but also legal action against the employer by the victim.
Racial harassment includes language, visual material or physical behaviour which is hostile or brings an employee into contempt or ridicule because of their race, colour or ethnic origins. The racial harassment must be hurtful or offensive to the employee and be so significant or repeated to have a negative effect on the employee's employment, job performance or job satisfaction.
Racial harassment could include making an offensive remark about another person's race, copying or making fun of how the person speaks, joking about their colour, calling them racist names or deliberately mispronouncing or mocking their names.
One of the challenges for employers is being able to monitor and control what their employees do.
In Corbett v UDP Shopfitters Limited, an employee, Michael Corbett, was found to have been racially harassed on the basis of his national origin after colleagues made a number of derogatory remarks about him, including referring to him as "f****** Irish", a "thieving Irish b******" and a "dumb Irish b******". The hostility continued, despite Corbett raising the abuse with senior managers at the company, culminating in Corbett being assaulted and then leaving his job.
In its decision, the authority found that Corbett was abused on the basis of his national origin by his colleagues, and that the derogatory remarks brought him into contempt and ridicule. As a result, he was found to have been unjustifiably constructively dismissed and received just over $13,000 in lost wages and compensation.
In another case, Bashir v Ladbrook Law Limited, Rabah Bashir, a practising lawyer, was found to have been unjustifiably disadvantaged as a result of racial harassment after his employer made derogatory comments about his ability to speak English and Arabic (which was his first language). The employee claimed this was a result of Bashir being bilingual.
Ladbrook Law claimed that the comments about Bashir were not racial harassment because "that written English can be difficult for non-native speakers was a fact". However, the authority did not accept this argument and found that the errors could just as easily have been attributed to inattention and inexperience, especially given that Bashir had achieved academic merit in English and obtained a law degree from Victoria University.
The authority found that the employer's comments ridiculed Bashir on the grounds of his race or ethnic origin, and that these comments caused hurt to Bashir, made worse because they were repeated throughout his employment.
Susan Hornsby-Geluk: "An employer may not always be able to prevent an employee making a racist remark to a colleague or treating them differently by reason of their race."
One of the challenges for employers in this area is being able to monitor and control what their employees do. An employer may not always be able to prevent an employee making a racist remark to a colleague or treating them differently by reason of their race. The employer may not even know about it.
Despite this, an employer will be held liable for the actions of their employee unless they can prove that they took all reasonably practicable steps to prevent the harassment from occurring. The same applies where the harasser is a client or supplier of the employer.
The steps that an employer would be expected to take would include having a clear policy on harassment and discrimination and acting on complaints as soon as they are made.
For Roseanne Barr, justice was swift. Her racist remarks were indefensible, and ABC exercised the only real option open to it in cancelling the show. However, a lot of racial harassment and discrimination occurs on a more subtle and insidious basis within workplaces. For employers, creating an environment in which there is zero tolerance for racism is key to stamping this conduct out.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.
- Stuff
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