There’s apparently a bit of a brouhaha in Wales — the former City Manager of Cardiff was caught sending racist text messages.

Why is this worthy of a post?

 Because an article in WalesOnline has reported on this story, and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”    “Banter” in the workplace was the subject of a recent post of ours, albeit sexual banter:  “We just read an article which began ‘Unwelcome groping, or a promise of a better job in return for a kiss, clearly amount to sexual harassment. But what about comments like ‘Oh wow, you look so pretty, I can’t even concentrate,” or ‘You look sexy today?’”

Our query was:  “Is this sexual harassment?   Harmless banter?   The answer is important to HR people, employers and employees.”   And HR people, employers, employees and attorneys wrote in to comment.

This latest incident in Wales seems qualitatively different — a racist comment is a racist comment.   Can it even be considered “banter,” the equivalent to “You look so pretty?”

In any event, in the Welsh article, attorney Darwin Gray discusses this issue, and it is interesting that his counsel could be given in the US unedited.   His advice as reported is printed below.

“There is no hard and fast rule, and it’s a very fine line between “banter” and discriminatory/potentially unlawful comments.  However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.

So basically, the advice is to pause and think about how comments could be perceived by others, especially when putting comments in writing (e.g., emails, texts).    Remember that emails, for example are permanent and can always be recovered.

It’s important that an employer doesn’t just ignore things as said employer does not want to be seen to be tolerating / encouraging such comments.

It is advisable for an employer to have an internal policy on equal opportunities and diversity – setting out what is acceptable and unacceptable conduct. That policy should be communicated clearly to all staff so that they are clear of the conduct / behaviour expected of them.

An effective way of communicating a policy is to hold staff training on diversity and equal opportunities (at least once a year).

This has two main benefits – it educates staff and will hopefully improve behaviour, and also, if things end up in an employment tribunal it will help the employer’s defence if they can show that they held such training with staff.

In other words, that the employer ‘did as much as they could’ to eradicate banter that had gone too far.”