Discrimination due to accent

Cases

Discrimination due to accent

A man employed by the Department of Defence alleged that he was discriminated against because of his accent and therefore on the ground of his race when he applied for a position in the Naval Personnel Division of the Department.

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A man employed by the Department of Defence alleged that he was discriminated against because of his accent and therefore on the ground of his race when he applied for a position in the Naval Personnel Division of the Department.

Background

The complainant is of German origin having emigrated to Australia in 1964. He is a longtime public servant working for both the Commonwealth and ACT Governments.

The alleged discrimination occurred when the complainant applied for an ASO 5 position with the Naval Personnel Division of the Department of Defence (the ‘Department’). He submitted a written application and was subsequently interviewed for the position (Kummle v The Commonwealth of Australia [1998] HREOCA 34 (7 October 1998)).

The interview

The selection committee found him highly suitable against one of the six selection criteria, suitable against four other selection criteria and unsuitable against one selection criterion. As a result of this last unsuitability which related to "written and verbal communication skills" he was not appointed to the position.

The report of the selection committee stated:

"Although [the complainant] has been in Australia for a long period, his accent is still especially strong making him difficult to understand when talking to him personally and more so over the telephone (as reported by those he contacted prior to the interview). Even more important, his capacity to communicate clearly and precisely both verbally and in writing was lacking, indicating his difficulties went beyond language per se."

The complainant alleged that the reference to his accent and his subsequent non-appointment constituted discrimination against him on the grounds of his race. The members of the selection committee gave evidence that although his written application was of a good standard, the number of typographical and grammatical errors contained within it was a concern. In his defence, the complainant stated that at the time he was writing his application he had been busy and had not had a lot of time to prepare it.

Further, it was submitted that the complainant’s performance in the interview had been somewhat aggressive and that his answers had been vague and obscure.

This combined with his strong accent had caused the committee to form the view that he did not meet the requirements of the selection criteria for written and verbal communications.

The law

The complainant alleged that ss9and 15of the Racial Discrimination Act 1975(Cth) had been breached. Section 9is a general statement of rights which proscribes action involving creating a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. Section 15, on the other hand deals with specific aspects of the employment process including a refusal or failure to employ someone by reason of that person’s race, colour or national or ethnic origin.

The Actalso provides that discrimination only has to be one of the reasons for a decision not to employ a person and not necessarily the dominant or substantial reason.

HREOC’s decision

Commissioner Innes of the Human Rights and Equal Opportunity Commission (HREOC) observed that while the complainant’s accent was obvious "it did not seriously impede [the Commissioner’s] ability to understand the words that he was using nor to appreciate the other more subtle facets of his verbal communication." He noted that the strength of a person’s accent may increase when they are nervous or under pressure as would be the case in a job interview or giving evidence in court.

Innes C found that the selection committee chose not to appoint the complainant to the position for three reasons: his strong accent which would make verbal communication of sensitive and complex information difficult; his meandering and sometimes irrelevant verbal communication style; and his poor written communication skills relative to the needs of the position.

Can accent constitute unlawful discrimination?

Innes C was not satisfied that the complainant was unable to communicate effectively at the required level. He found that the committee’s references to the complainant’s inability to effectively verbally communicate because of his strong accent had their basis in racial discrimination.

In previous cases it has been found that it is valid to discriminate on the basis of accent where good communication skills are essential. However, this is subject to the qualification that a person must not confuse a different sounding accent or the use of words in a different way, with an inability to understand.

Vicarious liability

Innes C found that the Department was vicariously liable for the actions of the committee. The Department was unable to establish that it took all reasonable steps to prevent its employees from doing discriminatory acts in connection with their employment. In particular, there was no evidence as to the Department’s practices in providing training to staff on non-discriminatory selection and recruitment techniques.

Innes C found that the references made to the complainant’s accent in the selection committee’s report were discriminatory and unlawful. The complainant was awarded $1000 general damages for the hurt and humiliation suffered as a result of these comments.

 

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