Is employer’s defense of ‘cultural differences’ acceptable in bullying claim?

When it comes to workplace harassment, the idea of cultural differences can be a delicate subject. As such, it’s important to understand the implications of this defense as it relates to bullying claims.

Employers often take the stance that any alleged bullying is simply a result of cultural differences, but is this really an acceptable defense?

What is cultural difference?

Cultural difference is the difference in customs, practices, behaviours, and ways of thinking between individuals and groups. This can be due to a number of reasons, including ethnicity, socioeconomic status, age, and level of education.

The concept of cultural differences is also closely tied to the idea of cultural diversity, which is defined as the “number and kinds of cultures that exist in a society, as well as their relative numbers and the way people in a given society respond to, and are affected by, those cultures”.

Cultural diversity is often seen as a source of strength and can lead to innovation, creativity, and better problem-solving. However, cultural differences can also lead to misunderstandings.

What does the law say about cultural differences in the workplace?

Many employers attempt to defend themselves against claims of workplace harassment by claiming that the alleged discrimination is a result of cultural differences. However, the law does not protect this type of defense.

This means that employers cannot use culture as a defense for mistreatment in the workplace, even if the employees come from a culturally different background. This does not mean, however, that cultural differences cannot be taken into account. In the event of an assault or harassment charges, an employer must look at the entire situation and consider all factors, including cultural differences, to determine what happened.

Employers must consider a variety of factors when evaluating workplace harassment claims, such as the type and severity of mistreatment, the frequency of these incidents, and the impact on the work environment.

In cases where the employer determines that an employee was mistreated due to cultural differences, employers must take steps to ensure all employees feel included and respected in the workplace.

Is it acceptable for employers to use ‘cultural differences’ as a defense in bullying claims?

As discussed above, the Code does not allow for cultural differences to be used as a valid defense for workplace harassment. This means that the employer cannot justify mistreatment of an employee due to cultural differences.

Employers who attempt to use this as a defense can be subject to disciplinary action. That being said, employers should be careful not to shut down the idea of cultural differences in the workplace. Cultural differences can lead to misunderstandings and should be discussed if an employee is experiencing mistreatment.

Employers should actively work to create a work environment that is inclusive of all cultures and backgrounds. This can be accomplished by providing resources and training to employees on the various cultures in the workplace. Employers can effectively navigate the situation by taking steps to understand the cultural differences that exist between employees and discussing any misunderstandings that arise.

The implications of using this defense

The implications of using cultural differences as a defense come in a variety of forms. Employers who use this defense may face a discrimination lawsuit, be subject to disciplinary action, or have their reputation tarnished.

If an employee feels that their mistreatment is a result of cultural differences, they can file a human rights complaint. At the time of filing, the employee will be asked to identify if the discrimination is due to ancestry, race, colour, ethnic origin, religion, Creed, sex, sexual orientation, gender identity, age, mental or physical disability, or pardoned conviction.

If an employee identifies this type of discrimination, an investigation will be launched. If the employer is found to be responsible, they will be asked to take corrective action. If the employer is found to have been neglectful, they could face disciplinary action. However, if the employer is found to have discrimination on their part, they will likely be required to pay extensive damages to the employee, including legal fees.

How this defense affects the work environment

When an employer uses cultural differences as a defense, it can have a negative impact on the work environment. When two employees are in an altercation and one uses ‘cultural differences’ as a defense, it can make the other employee feel as though their experiences are invalid.

Employers should always take seriously any allegations of mistreatment and make every effort to create an inclusive and respectful work environment. It is important to remember that all employees have the right to feel respected and valued in the workplace. Employers who use this defense are essentially telling their employees that their experiences are not important. This can have a negative impact on the work environment and create an environment where employees feel unsafe.

Advice to employers and employees

Employers should always take seriously any allegations of mistreatment and make every effort to create an inclusive and respectful work environment.

Employers should actively work to create a work environment that is inclusive of all cultures and backgrounds.

Employers should provide resources and training to employees on the various cultures in the workplace.

Employers should discuss any misunderstandings that arise.

Employers should consider a variety of factors when evaluating workplace harassment claims, such as the type and severity of mistreatment, the frequency of these incidents, and the impact on the work environment.

Employers should take steps to ensure all employees feel included and respected in the workplace.

Employers should be careful not to shut down the idea of cultural differences in the workplace.

Employers should use cultural differences as a defense at their own risk.

Conclusion

The workplace is an ever-evolving place where cultural differences between employers and employees can lead to misunderstandings. When it comes to workplace harassment, the idea of cultural differences can be a delicate subject. As such, it’s important to understand the implications of this defense as it relates to bullying claims.

Employers often take the stance that any alleged bullying is simply a result of cultural differences, but is this really an acceptable defense? The law does not allow for cultural differences to be used as a valid defense for workplace harassment. This means that employers cannot justify mistreatment of an employee due to cultural differences. However, when employers actively work to create a work environment that is inclusive of all cultures and backgrounds, they can effectively navigate this situation while also creating a respectful and inclusive workplace for all employees.

Contact Jolasers about any workplace investigation that may involve cultural differences. 

Call Stephen Oliver on 0418 101 164 for prompt attention.


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