Review case—use of language and complaint about racial harassment

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice

An APS employee sought review of the agency's response to allegations that a colleague had bullied and harassed the employee, including racial harassment. The employee was concerned about the colleague's use of language including referring to African Americans as 'the blacks' and using the term 'Sambo' during social conversations at work.

The Merit Protection Commissioner observed that the employee was offended by the use of this language but found that none of this language was directed at the employee or intended to hurt or insult the employee.

The employee argued that even though there was no intent to hurt or insult, the use of this language was nevertheless inappropriate in the workplace and constituted racial harassment. The Merit Protection Commissioner took the view that use of the term 'the blacks' as a descriptor of African Americans or other racial groups was not necessarily offensive. However, the use of the term 'Sambo' was more problematic because of its association with a racial caricature.

Following the guidance in the Commissioner's publication Respect: Promoting a culture free from harassment and bulling in the APS, the Merit Protection Commissioner noted that whether language is offensive is not an entirely subjective matter. The context in which language is used is relevant to establishing whether a reasonable person would find it offensive. In this case, the colleague's use of the term 'Sambo' was done in a neutral, factual manner, in reporting something that had occurred when the colleague was a child. In this circumstance, the Merit Protection Commissioner found that the colleague had not engaged in racial harassment of the employee.