When it comes to workplace harassment, the topic of “cultural differences” is delicate. Often, accused employees or even management will claim that behaviour labeled as bullying was simply a cultural misunderstanding or a difference in communication styles.
But is this a valid legal defense? Can an employer dismiss a bullying claim just because the perpetrator “didn’t mean it” due to their background?
In this article, we explore the implications of using culture as a defense and why relying on it can be dangerous for employers.
What is “Cultural Difference”?
Cultural difference refers to the variance in customs, communication styles, behaviours, and values between individuals. This stems from ethnicity, socioeconomic status, upbringing, and education.
Diversity is generally a source of strength, leading to innovation and better problem-solving. However, it can lead to friction. For example, direct eye contact is a sign of respect in some cultures, while in others, it is seen as aggressive or challenging. When these styles clash, misunderstandings occur.
The Legal Standpoint: Is Culture a Defense?
Many employers attempt to defend against claims of workplace harassment by arguing that the alleged conduct was just a “cultural clash.”
The short answer is: No. The law generally does not accept culture as a defense for mistreatment.
In Australia, workplace bullying is typically assessed using the “Reasonable Person Test.” The question is not just “Did the perpetrator intend to bully?” but rather, “Would a reasonable person consider this behaviour unreasonable and likely to create a risk to health and safety?”
Even if an employee comes from a background where loud shouting is a normal way to express passion, if a reasonable person in the current workplace considers it aggressive and intimidating, it is bullying. Employers cannot use culture to justify behavior that makes others feel unsafe.
The Dangers of Using the “Cultural Defense”
Relying on this defense can backfire spectacularly for several reasons:
- Invalidating the Victim: Telling an employee that their abuse is just “someone’s culture” effectively tells them their safety doesn’t matter. This destroys morale and trust.
- Legal Liability: If an employer dismisses a complaint based on culture and fails to investigate, they may be found liable for negligence or vicarious liability in a tribunal.
- Discrimination Risks: Ironically, attributing negative behaviour to an employee’s culture can itself be a form of discrimination or stereotyping.
Advice for Employers
Employers must walk a fine line. You should not shut down the idea of cultural differences entirely—misunderstandings do happen—but you must not use it to excuse toxic behaviour.
Best Practices:
- Investigate Facts, Not Stereotypes: Look at the severity, frequency, and impact of the behaviour, regardless of the intent.
- Set a Standard: clearly define what is acceptable behaviour in your workplace. This “Workplace Code of Conduct” supersedes individual cultural habits.
- Education vs. Excuses: Use cultural misunderstandings as a training opportunity, but enforce consequences if the behaviour continues after the employee has been corrected.
- Inclusive Training: Provide resources to help employees understand different communication styles before conflict arises.
Conclusion
The workplace is an ever-evolving environment. While employers should actively foster inclusivity, “culture” is not a get-out-of-jail-free card for harassment.
Employers who try to sweep bullying under the rug as a “cultural difference” risk legal action, reputational damage, and a toxic work environment. The safety and psychological well-being of your staff must always come first.
Watch our video on this topic: Workplace Bullying and Culture
Complex Investigation? We Can Help.
Jolasers provides independent, culturally sensitive workplace investigations.
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Common Questions
Can culture be a defense for bullying?
Generally, no. Under the ‘reasonable person’ test, if the behaviour is unreasonable and creates a risk to health and safety, it is considered bullying regardless of the perpetrator’s cultural intent.
How do we handle cultural misunderstandings?
Address them through mediation and education. However, if an employee continues the behaviour after being told it is unwelcome, it crosses the line from misunderstanding to misconduct.
What if the ‘bully’ feels discriminated against?
This is why independent investigations are crucial. An objective investigator can determine if the complaint is valid or if the accused is being unfairly targeted due to bias.