On the weekend, Netflix's US communications chief Jonathan Friedland was fired from the company for "descriptive use of the N-word" in the workplace. In an internal memo to staff, CEO Reed Hastings explained that Friedland had been let go for exhibiting "unacceptably low racial awareness and sensitivity."
Meanwhile, here in Australia, much has been made of "the right to be a bigot". This got us wondering - is it legal to terminate an Australian employee for using a racial epithet? Or would they have a case for unfair dismissal? Let's find out.
First some background for those unfamiliar with the Netflix story. On June 23, Netflix communications chief Jonathan Friedland, who had been with the company for seven years, was abruptly fired following a string of controversies involving the use of the "N-word".
Significantly, Friedland used the word not once, but twice and demonstrated to employees that "he didn’t care and didn’t accept accountability". Rather than rehash the whole incident and fallout here, we'll let Hastings' company memo speak for itself:
The first incident was several months ago in a PR meeting about sensitive words. Several people afterwards told him how inappropriate and hurtful his use of the N-word was, and Jonathan apologised to those that had been in the meeting. We hoped this was an awful anomaly never to be repeated.
Three months later he spoke to a meeting of our Black Employees @ Netflix group and did not bring it up, which was understood by many in the meeting to mean he didn’t care and didn’t accept accountability for his words.
The second incident, which I only heard about this week, was a few days after the first incident; this time Jonathan said the N-word again to two of our Black employees in HR who were trying to help him deal with the original offense. The second incident confirmed a deep lack of understanding, and convinced me to let Jonathan go now.
For his part, Friedland acknowledged that he had made a mistake, albeit somewhat begrudgingly:
I’m leaving Netflix after seven years. Leaders have to be beyond reproach in the example we set and unfortunately I fell short of that standard when I was insensitive in speaking to my team about words that offend in comedy.
— jonathan friedland (@jsf33) June 22, 2018
Now, it's worth noting that Friedland did not use the word to directly attack another employee. Nor was he making a racist joke or describing a group of people with a racist slur. Rather, he was discussing words that offend in comedy and gave the n-word as an example. This is important, as context can determine what disciplinary action will be taken in an Australian workplace (if any).
Currently, most of Australia's anti-discrimination workplace laws center around employer behaviors, such as refusing to hire someone based on their race or deliberately withholding training and promotion opportunities.
However, the law does provide some limited protections to those on the receiving end of racial slurs. Section 18C of the Racial Discrimination Act states the following:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
At the same time, the Act attempts to protect everybody's right to communicate freely. Statements that are made "reasonably and in good faith" are not unlawful.
In this context, Friedland's comments likely wouldn't qualify as racial discrimination or vilification. It should also be noted that unlawful acts are not actually criminal - it's up to the aggrieved party to pursue damages in court. (By contrast, criminal acts are pursued by the police and can result in jail time.)
With that said, most workplaces have their own policies that forbid the use of racial slurs, for any reason. As legal services business LegalVision explains on its blog:
[As an employer], you should make it clear at the outset that you will not tolerate racist behaviour in your workplace, and try to encourage a culture amongst your employees that promotes inclusion.
There are several policies that your business can implement setting out what you expect regarding employee behaviour. These documents should also describe what action you can take against employees that engage in this behaviour such as warnings or even dismissal.
In other words, using the 'n-word' or similar racial slurs is not strictly illegal in the Australian workplace. However, you could still be fired for violating your employment contract, compromising your employer's inclusion policies or otherwise damaging their reputation.