Not all that long ago, someone asked me what I did for work. I have learnt from the first year in my job that this can be a dangerous question. Mentioning racial discrimination too early in a conversation can be enough to kill it. Often I simply say to people that I work at the Australian Human Rights Commission.
On one occasion when I gave this answer, I was then asked: “So, do you work in the Finance section or IT section at the Commission?” I explained that I worked in the policy area of the Commission, and that I was one of a number of Commissioners who had special responsibility for matters of race discrimination. Upon realising that a more open-ended question may have served him better, my new friend showed the tell-tale signs of mortification. The conversation quickly moved on to a different topic.
Looking back, I feel a measure of sympathy for my new friend. This was someone who had asked an innocent question of a new acquaintance. My new friend’s faux-pas was not that he had made certain assumptions about me; if we are all honest about ourselves, we make all sorts of assumptions about people we meet for the first time. His mistake was that he had revealed some assumptions that might have been better kept to himself.
An episode of this sort illustrates the challenge of dealing with biases and assumptions. Such things don’t always reveal themselves in our conversations. More frequently than not, they remain hidden. And when concealed – whether in values, policies or practices – they can fuel discrimination.
This evening, I’d like to offer some remarks on how unconscious bias can shape racial discrimination in Australia – particularly, how it may affect Australians of Asian backgrounds in professional workplaces. Unless we are able to understand the sources of discrimination, and how we can eliminate them, there will be very little that we can do to break through that so-called bamboo ceiling.
The bamboo ceiling
Talking about a bamboo ceiling begs the question: Does such a ceiling actually exist? Are there barriers to the professional advancement of Australians of an Asian cultural background?
Recognising that such barriers exist – and I believe they do exist – can be the most difficult part of starting a conversation about diversity and unconscious bias. Not everyone accepts the premise of the conversation.
You will have all heard the following many times before: we live in an egalitarian, meritocratic society that is blind to cultural difference. Some will respond by saying that figures such as Victor Chang or Bing Lee demonstrate that Asian Australians can succeed as professionals or entrepreneurs without major problems. Other responses are more dismissive: if Asian Australians aren’t in leadership positions, it’s because they may not aspire to them; they may be more comfortable remaining in the background.
However one explains things away, the facts are pretty clear. Nearly 50 per cent of our population were either born overseas or have a parent who was born overseas. While it is difficult to offer a precise figure, it is estimated that close to 10 per cent of the Australian population have Asian cultural origins or ancestry. But such diversity is far from proportionately represented when it comes to positions of leadership in both the public and private sectors.
For example, in the current Federal Parliament, there are only, to my count, three MPs and senators who have Asian cultural origin or ancestry: Senators Penny Wong and Lisa Singh, and the Member for Moore, Ian Goodenough. That constitutes 1.3 per cent of the membership of our Federal Parliament. As of 1 July, the arrival of Senator-elect Dio Wang of Western Australia will boost this figure to 1.7 per cent.
This is mirrored in the composition of leaders in the Australian public service. Of the 17 heads of federal government departments, there is only one who is of Asian cultural origin. It is interesting to go through the names of current departmental secretaries: Wilkins, Grimes, Clarke, Richardson, Paul, Leon, Tune, Varghese, Halton, Campbell, Bowles, Beauchamp, Mrdak, Pratt, de Brouwer, Watt, Lewis, Parkinson.
Last year Diversity Council Australia studied the cultural origins of Australia’s business leaders. They found a very low representation of leaders with an Asian background. Compared to 9.6 per cent of the Australian community with an Asian background – based on a methodology using names – only 1.9 per cent of executive managers and 4.2 percent of directors have Asian cultural origins. I’m not sure what the figures are with respect to partnership in law firms, at the bar, or on the judicial bench. But I imagine the situation may not be substantially different.
If one were to offer a charitable view of things, you could say that the under-representation of Asian backgrounds in leadership positions may reflect the fact that diverse leaders are still in the “pipeline”. Asian Australians’ low levels of representation in leadership positions could be a product of the relatively brief period of time since the arrival of Asian migrants in significant numbers. Perhaps in ten or twenty years time, the situation will be much different. Then again, that is what was also said ten or twenty years ago. Not much appears to have changed.
There is evidence to suggest racial discrimination could be a contributing factor. In 2010, economists at the Australian National University found substantial racial discrimination in hiring by Australian employers. The researchers sent more than 4000 fake job applications for entry-level jobs. The applications contained the same qualifications but with different names, distinguished by their ethnic origin. Here’s what the researchers found. In order to get as many interviews as an applicant with an Anglo-Saxon name, someone with a Chinese name needed to submit 68 per cent more applications. Those with a Middle Eastern name would need 64 per cent more. By comparison, those with an Italian name needed to put in 12 per cent more applications.
Unconscious bias and stereotyping
Of course, the problem with our so-called bamboo ceiling is not really one concerned with access to employment. Rather, it is about what happens with advancement and progression for those already in employment. It is here that I want to say a little more about the role of bias in shaping representation.
What we call unconscious bias is unavoidable. We naturally categorise our information; we routinely sort objects and people into groups to help us make decisions. It is a product of biology and the way our brains work. We associate people who may look or sound a particular way with certain things, whether good or bad.
These are associations that are activated without us being aware. As social psychologists have demonstrated, we all make implicit assumptions – including about ethnic or racial groups – even if we consciously think that we reject a group stereotype. Studies demonstrate there are often massive discrepancies between our conscious and unconscious biases.
Could it be that unconscious bias may contribute in some way to the pattern of representation for Asian Australians in the ranks of leadership? It seems uncontroversial to me to answer that unconscious bias and stereotyping must play some part. This is because the poor level of Asian Australians in leadership positions appears to replicate a certain pattern that occurs more generally in Australian culture. It is a pattern of invisibility.
Consider the disjuncture between the familiar presence of Asians in Australian society – particularly in our major cities and suburbs – and the exotic character they still assume in Australian media. Yes, it is true there are numerous Asian faces on our television screens these days. Yet for the most part they are confined to presenting programs about the culinary delights of modern Australian fusion food, or as plucky contestants in cooking shows such as Masterchef. We see few Asian faces reading the news, particularly on our commercial channels. We see few Asian faces intruding upon spheres that we may describe as the domains of mainstream Australia.
In that archetypically Australian suburban setting, the Ramsey Street of Neighbours, it took about a decade after the show began in 1985 before an Asian family moved in – the Lims. Yet while the intentions of Neighbours appeared harmless enough, the Lims were only there very temporarily, forgotten by all but perhaps the closest of Neighbours devotees. The most notable feature of the Lims’ brief time living on Ramsey Street was their involvement in a plotline where neighbour Julie Martin accused them of eating Holly, her family dog.
It would be about another decade before another Asian family – the Kapoors – would make it to Erinsborough. Despite considerable fanfare, the Kapoors would last little over a year. Were it a real place, Erinsborough would be an Australian suburb that has remained remarkably insulated from Asian immigration.
I use this example of popular culture only to illustrate a point about visibility of Asian Australians – namely, the lack of it. The invisibility matters because it points to some of the cultural assumptions and stereotypes about people of Asian background.
There is, of course, the dominant “model minority” stereotype of Asians: picture the law-abiding, hard-working family with studious and obedient children. So far as stereotypes go, this appears benign enough. Yet the model minority stereotype may also belie a more negative stereotype. What one person may regard as the laudable qualities of being inoffensive, diligent, and productive can, for another person, sound a lot like passivity, acquiescence and subservience. These are precisely the qualities that map on to the state of invisibility.
Here, we must acknowledge that any unconscious bias against Asians may have long roots. Western culture has long entertained the trope of the invisible, inoffensive and submissive Asian. Think of the obsequious Charlie Chan or the unassuming Mister Miyagi; think of the meek-mannered Jackie Chan alongside his more dominant partner Chris Tucker in Rush Hour. As these examples in Western culture illustrate, even when the Asian may defy the expectations of his counterparts who may underestimate his abilities, he never seeks to challenge the status quo.
With such cultural form, we shouldn’t be all that surprised to hear some people say that people of Asian background may not be in positions of leadership because it may not be something to which they aspire.
The law and unconscious bias
One of the difficulties in changing unconscious bias is that the law has limited ability to provide a remedy, even if bias should reveal itself in conduct. This isn’t to say that the law remains silent about racial discrimination in employment. Under section 15 of the Racial Discrimination Act, it is unlawful to refuse employment or to afford someone the same terms of employment, conditions and opportunities as another person similarly qualified or employed by reason of race, colour or national or ethnic origin.
It is difficult, though, for complainants to succeed in bringing cases about racial discrimination without direct evidence. Most of the cases successfully litigated have been brought under its racial hatred provisions of the RDA – namely, section 18C, which makes it unlawful to commit a public act that is reasonably likely to offend, insult, humiliate or intimidate someone on the grounds of race. These cases have often involved direct evidence, in the form of published material, on which the court could base its finding of racial hatred.
Beyond this, the courts have been reluctant to make findings about systemic racism – the kind of conduct that reflects unconscious bias in action. The cases highlight how difficult it is for complainants to prove racial discrimination in decisions about hiring or promotion in employment.
Consider the case of Sharma v Legal Aid Queensland, which involved alleged discrimination in recruitment for senior legal positions. The complainant, Mr Sharma, alleged that racially discriminatory conduct could be inferred from “the known existence of racism” combined with the fact that the decision to appoint people to senior legal positions was “made between people of different races”. The Federal Court held that it should be wary of “presuming the existence of racism”.
The decision of the Federal Court in that case was upheld by the Full Federal Court on appeal. The Full Court agreed that in appropriate cases inferences of discrimination might be able to be drawn saying that, “it may be unusual to find direct evidence of racial discrimination”, especially where an employer's motivation not to employ someone is subconscious. However, the Full Court reiterated that such inferences are not to be made lightly.
To be sure, there will always be challenges in regulating unconscious bias through legislative means. The law is better placed to provide remedies for outward conduct than it is to correct attitudes and assumptions that are held within a person. Nonetheless, I believe we should recognise the important role of the Racial Discrimination Act in combating racism.
As you are aware, the Federal Government has proposed amendments to Part IIA of the RDA – namely, a repeal of the current section 18C, which deals with racial hatred. In the public debate on this issue, I have made my position clear. I do not believe the case has been made for changing a section of the Act, which has enjoyed community support for almost two decades and has worked to resolve hundreds of complaints about racial vilification. This appears to be a position shared by the overwhelming majority of Australians. According to one Fairfax-Nielsen poll in April, 88 per cent of Australians agree that it should remain unlawful to offend, insult or humiliate someone on racial grounds.
It is my view that were the exposure draft of proposed amendments to be enacted, were there to be a weakening of existing protections against racial vilification, there would be the potential danger that it would embolden a minority of Australians to believe that they could racially abuse or harass others with impunity. Some may well believe that they enjoy a right to bigotry, which they could exercise in the name of free speech – without understanding that their fellow citizens also enjoy a right to be free from bigotry’s effects.
The ongoing debate about section 18C has served to confirm one thing. If we are committed to values such as civility, tolerance and non-discrimination, then it is important that this is endorsed and expressed in our laws. Our laws help to set the tone for how we conduct ourselves in public. We should all be concerned about what a repeal of section 18C could mean for the tone in our workplaces and professional lives. When given licence, today’s prejudices and biases may morph into far uglier sentiments and conduct tomorrow.
Let me conclude with some reflections on how we are to deal with unconscious bias and the bamboo ceiling.
First, it is important that we are able to speak about this issue, and that people can do so within workplaces without endangering their prospects. My colleague Elizabeth Broderick has referred to the problem of sex discrimination as “career asbestos”. Bias and prejudice can be there, built into our walls, but too dangerous for us to touch or disrupt. The metaphor is apt, and I think it also applies to matters of racial discrimination.
At the same time, there is perhaps an added difficulty in raising matters of race. Within some circles, the diversity agenda can be too narrowly defined. Just yesterday, upon the announcement of the Queen’s Birthday Honours list, there were vocal criticisms about women comprising only 32 per cent of recipients of the Order of Australia awards; no one appeared to be interested in the almost complete absence of non-European names among those awarded ACs, AOs and AMs. Based on a quick count I conducted yesterday, of the 800-odd recipients of Queen’s Birthday honours, only 25 had names of apparent non-European origin. That comes to about 3 per cent of the total. To give you some sense of how this stacks up, in terms of representativeness, this is equivalent to women comprising only about 15 per cent of total honours recipients.
My point here is that there isn’t always oxygen left for a conversation about race. This is a pity. And it would be a greater pity if advances in diversity were to occur unevenly across gender and race (and for that matter, disability and sexual orientation). Breaking the glass ceiling and cracking the bamboo ceiling should not be regarded as mutually exclusive. The challenge of managing cultural diversity should not be relegated to an afterthought.
Secondly, if we are able to raise the issue, we must aim to transform assumptions and expectations. This needs to include both those who are of Asian background and those who work with Asian employees. With regard to this, I am indebted to Ken Woo, a partner at PwC, who is leading his firm’s initiative to increase the number of partners with an Asian background. As he has observed, there are various forms of unconscious bias that contribute to so few Asians ever qualifying for leadership positions in Australia. There is, if you like, a wicked cycle of bias and behaviour.
In his experience, Woo has observed that Asian members of his team have exhibited patterns of behaviour including a healthy respect for elders, a directness in performing tasks, a commitment to working harder than others, and a desire to find fairness in the firm’s practices. On the face of it, these would appear to be commendable behaviours. But when placed in the context of unconscious bias and cultural stereotypes, they may actually prompt others to make unfavourable observations and assessments.
A respect for elders may lead others to observe an unwillingness on the part of an employee to challenge authority – and an assessment that the employee lacks leadership potential. Being direct in one’s manner may lead others to observe abruptness or rudeness – and an assessment about a lack of social awareness. Resolving to work 10 per cent harder may lead others to observe an employee who is buried in the detail – and who may fail to appreciate the big picture. Seeking fairness in the workplace, particularly on matters of discrimination, may lead others to observe that an employee is too intense – and may lack perspective.
All this isn’t intended to place the blame for racial discrimination at the feet of those who may experience it. But if those who are disadvantaged can’t themselves understand some of the contributing reasons for unfair treatment, they may not be in a position to instigate change. As for those who harbour unconscious bias or prejudice, bringing into the open the observations and assessments commonly made of employees of Asian cultural background must be the first step to ending the cycle of expectations that reproduces disadvantage.
This brings me to my final point: the value of merit. Merit remains a shibboleth that gets in the way of any constructive conversation about unconscious bias. It will be said that being more sensitive about cultural diversity – for instance, by introducing targets or quotas to ensure better representation of minorities – may have the effect of undermining meritocracy.
Yet the conditions of a truly level playing field are rarely ever met. Judgements about potential and performance, and decisions about hiring and promotion, are invariably coloured by cultural perceptions of merit. It is these perceptions that form the basis of stereotypes and unconscious bias. Once they are activated, they can influence decision making in favour of some groups over others, without people being aware. Professions of meritocracy can sometimes hide practices that are anything but meritocratic.
Asian Australians, in one sense, would appear to be the great beneficiaries of egalitarian meritocracy. The stereotype of the Asian model minority certainly suggests that they are. But we should be vigilant of some potential dangers. We must avoid a situation where unconscious bias is mindlessly reproduced.
What we must avoid is a situation where we end up creating, without intending to do so, a class of professional Asian-Australian coolies in the twenty-first century. It would be neither just nor good to have a country where people may comfortably believe that a class of well-educated, ostensibly over-achieving Asian-Australians are perfectly content with remaining in the background, perennially invisible and permanently locked out from the ranks of their society’s leadership.
 Australian Bureau of Statistics, 2071.0— Reflecting a Nation: Stories from the 2011 Census, 2012- 2013. At http://vvww.abs.gov.au/ausstats/abs.nsf/Lookup/2071.0main+features902012... (viewed 5 June 2014).
 Diversity Council Australia, Capitalising on Culture: A National Survey of Australian Business Leaders, 2013.
 A Booth, A Leigh and E Varganova, “Does Racial and Ethnic Discrimination Vary Across Minority Groups? Evidence from a Field Experiment”, July 2010, CEPR Discussion Paper No. DP7913, available at SSRN: http://ssrn.com/abstract=1640989.
 On invisibility and race, see e.g. R Ellison, Invisible Man (1952).
 Section 15, Racial Discrimination Act 1975 (Cth).
 Sharma v Legal Aid (Qld)  FCAFC 196..
 See also Qantas Airways v Gama  FCAFC 69, where the court was also asked to draw inferences, and the Full Federal Court clarified that discrimination claims should be approached like any other civil claim when assessing the standard of proof.
 See e.g. Dr T Soutphommasane, 'Racism is a moral issue', Speech to Society of Australasian Social Psychologists, Canberra, 11 April 2014, https://www.humanrights.pov.au/news/speeches/racism-moral-issue and 'No case to change Racial Discrimination Act', The Age, 20 March 2014.
 M Kenny, “Race hate: voters tell Brandis to back off”, Sydney Morning Herald, 13 April 2014, http://www.smh.com.au/federal-politics/political-news/race-hate-voters-tell-brandis-to-back-off-20140413-zqubv.html
 See E Broderick, “Gender equality in the workforce: A feminist approach”, Speech, 12 August 2010, https://www.humanrights.gov.au/news/speeches/gender-equality-workforce-feminist-approach-2010
 K Woo, Unpublished paper. For some corroborating academic evidence about negative discrimination and stereotypes about Asians in the US, see J Berdahl and J Min, “Prescriptive stereotypes and workplace consequences for East Asians in North America”, Cultural Diversity and Ethnic Minority Psychology, 18 (2012), pp. 141-152.
 J Whelan, “The myth of merit and unconscious bias”, The Conversation, 16 October 2013, http://theconversation.com/the-myth-of-merit-and-unconscious-bias-18876