Discriminatory Harassment at Work: How to Identify, Prevent and Respond

What Discriminatory Harassment Is

Discriminatory harassment is unwanted conduct directed at a person because of a protected attribute, in circumstances where a reasonable person would expect it to offend, humiliate or intimidate them.

The attribute is what separates discriminatory harassment from ordinary workplace conflict.

A manager who is short with everyone is a management problem. A manager who is short only with the workers over fifty, or only with the workers who wear a hijab, is doing something the law treats very differently.

Three features matter in practice. Intent is not the test, so “I didn’t mean anything by it” does not answer the question. A single incident can be enough if it is serious.

And the conduct does not have to be aimed at a particular person: a running joke about a disability, told in a room, is discriminatory harassment of everyone in that room who shares the attribute.

The Protected Attributes It Can Target

Australia protects attributes across several statutes rather than one. Which law applies depends on the attribute and on where you are.

Discriminatory Harassment and Discrimination: The Distinction That Matters

People use discriminatory harassment and discrimination interchangeably. They describe different conduct and they usually need different fixes.

They travel together. A team where discriminatory harassment goes unchallenged is a team where the promotion decisions are worth auditing, because the same assumptions drive both.

This article covers the harassment side. For the decisions side, see how to deal with discrimination in the workplace as an employer, and our attribute-specific guides on gender discrimination, disability discrimination and age discrimination.

Hostile Work Environment: The American Term and the Australian Reality

“Hostile work environment” is one of the most searched workplace phrases in Australia, and it is not an Australian legal concept.

It comes from United States law, where harassment claims are run under Title VII of the Civil Rights Act and a hostile work environment is a recognised category of claim.

Australian law does not have a general hostile work environment cause of action, so complaints of that kind are handled here as discriminatory harassment. What it has instead is narrower and, in one area, newer.

Since the Respect at Work amendments, the Sex Discrimination Act makes it unlawful to subject a person to a hostile workplace environment on the ground of sex.

The test asks whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of that sex, by reason of their sex or a characteristic associated with it.

Two things follow. It does not require conduct aimed at the complainant. Pornographic material on a wall, or a running stream of degrading commentary about women, can create a hostile workplace environment for a worker nobody has spoken to directly.

And it is limited to sex. There is no equivalent standalone provision for race, disability, age or religion.

For those attributes you are back to the harassment and discrimination provisions in the relevant Act, the Fair Work general protections, state and territory law, and your work health and safety duty.

The practical answer is the same either way: a workplace environment that is hostile because of an attribute is discriminatory harassment, and it is your problem to control.

How to Identify Discriminatory Harassment

Discriminatory harassment shows up in four broad ways, and only the first is the one most policies describe.

Verbal and Written Conduct

• Slurs, name-calling, and jokes that trade on an attribute
• Mimicking an accent, a disability, or a way of speaking or moving
• Comments about a person’s age, faith, body, or family situation dressed as concern
• Repeated questions about someone’s background, identity or private life
• Content in email, Teams, Slack or WhatsApp groups, including from personal accounts where there is a connection to work

Environmental Conduct

• Material displayed anywhere workers can see it, including screensavers and vehicle cabs
• A running commentary or theme in a team that degrades a group
• Conduct nobody has aimed at a specific person but everyone with the attribute has to work in

Structural Conduct

• Exclusion from meetings, information, training, travel or social events
• Performance feedback applied to one group and not another
• Consistently allocating the least desirable work to the same group
• Refusing reasonable adjustments and treating the request itself as a problem
• Treating one worker as the spokesperson for their whole community

The Escalation Pattern

Discriminatory harassment escalates when nothing interrupts it.

Comments become a theme, the theme becomes the team’s shared humour, and the humour becomes the reason a good worker leaves.

The organisation usually learns about all of it at once, from an exit interview or a conciliation notice.

The Law: Which Acts Apply and Who Enforces Them

Where the conduct is sexual or sex-based, a stronger obligation applies.

Section 47C of the Sex Discrimination Act imposes a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and related victimisation.

The Australian Human Rights Commission has been able to enforce that duty since 12 December 2023, through inquiries, compliance notices, enforceable undertakings and applications to the federal courts.

The positive duty is proactive. It does not wait for a complaint.

Its seven standards, set out in the Commission’s guidelines, are leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency.

They are a sound framework for discriminatory harassment generally, even though the duty itself is limited to sex.

What the Data Shows

Read rows two and three together. Nearly half of Australia’s mental stress claims are caused by harassment, bullying, or exposure to violence and harassment. That is conduct, not workload, and conduct is controllable.

Then read the last row. At an 18% reporting rate, your internal complaint numbers show you roughly a fifth of what is happening.

Where Employer Liability Actually Comes From

Most organisations assume liability for discriminatory harassment follows from what the harasser did. It follows from what the employer did not do.

Under the federal discrimination Acts an employer is liable for discriminatory harassment committed by a worker in connection with their employment, unless the employer can show it took all reasonable steps to prevent it. That is the whole contest in most cases, and a policy on its own does not win it.

What tends to make the defence stand up:

• Training that everyone actually completed, with records you can produce by name and date
• A complaints process that people have used, which means the register is not empty
• Evidence that earlier, smaller reports were acted on rather than filed
• Managers who can describe what they would do, because they were trained separately
• A behaviour policy that names attributes and gives examples, updated within living memory

What tends to sink it: a policy nobody has read, training that stopped in 2019, a complaint that was handled informally with no record, and a manager who says the conduct was well known and nobody minded.

How to Prevent Discriminatory Harassment

1. Name Every Attribute in Your Policy

List the attributes, including religion and carer’s responsibilities, and give real examples of discriminatory harassment for each.

Do not stop at a statement of values. A policy that says “we do not tolerate discrimination” tells a worker nothing about whether a joke about their hearing aid counts.

2. Train Everyone, and Train Managers Separately

Workers need to recognise discriminatory harassment and know how to report it. Managers need to know how to receive a disclosure, what to do in the first 24 hours, and what not to promise. Sentrient’s EEO training course and respect at work training cover the worker level, and the diversity, equity and inclusion course builds the culture underneath it.

3. Put It on the Psychosocial Risk Register

Safe Work Australia names harassment and discrimination among the psychosocial hazards a PCBU must manage.

Treating discriminatory harassment as a registered hazard with controls, an owner and a review date is both better prevention and better evidence.

Our guide to psychosocial risk management covers the process.

4. Give People a Way to Report That Avoids Their Manager

The single most common reason discriminatory harassment goes unreported is that the reporting path runs through the person doing it, or through their friend.

5. Deal With the Environment, Not Just the Incidents

Material on walls and screens, running jokes, and team themes are the conditions that produce complaints.

Under the hostile workplace environment provision they can be unlawful in their own right, with no individual target required.

6. Audit the Decisions as Well

Where discriminatory harassment is present, look at recruitment, promotion, pay and redundancy selection for the same groups. The two rarely occur separately.

How to Respond to a Complaint

1. Listen without litigating it: Record what the person says in their own words. Do not ask them to consider whether it was meant that way.
2. Identify the attribute early: It determines which law applies, which external avenue is open, and what time limits are running.
3. Deal with immediate safety: If separation is needed, move the respondent. Moving the complainant reads as punishment and invites a victimisation claim.
4. Investigate impartially: Someone with no stake, allegations put to the respondent, a genuine chance to answer, witnesses interviewed, decided on the balance of probabilities.
5. Look at the environment, not only the incident: If the conduct was a team norm, one disciplinary outcome will not fix it.
6. Protect against victimisation: Check in during and after. Victimisation is unlawful in its own right and often causes more harm than the original conduct.
7. Act and close the loop: You cannot disclose another person’s discipline, but you can confirm the matter was substantiated and action taken.
8. Record the lot: The file is what proves all reasonable steps later.

Workers also have external options and should not be discouraged from using them: the Australian Human Rights Commission, their state or territory anti-discrimination body, the Fair Work Commission where adverse action was taken, and their WHS regulator.

Australian complaints go to Australian bodies. Time limits apply, so advice from a union, a community legal centre or a lawyer is worth getting early.

A Discriminatory Harassment Prevention Checklist

• Your behaviour policy names every protected attribute, religion included, with examples
• The policy states that a single serious incident is enough to act on
• The policy covers environmental conduct with no individual target
• There is a reporting path that does not run through the line manager
• All workers have completed EEO or respect at work training and you hold the records by name and date
• Managers have had separate training on handling a disclosure
• Discriminatory harassment sits on your psychosocial risk register with controls and an owner
• Your complaint register is not empty, and you know why if it is
• Earlier low-level reports can be shown to have been acted on
• Recruitment, promotion, pay and redundancy decisions are reviewed for patterns
• Victimisation protections are written down and checked after every complaint
• You could evidence all reasonable steps if a claim landed tomorrow

Where to Start

Open your behaviour policy and check whether it names attributes or only says the word discrimination. If it only says the word, workers cannot tell what is covered and managers cannot tell what to act on.

Then look at whether anyone has used your complaints process in the last year. An empty register in an organisation of any size is a measurement problem, not a clean record.

Frequently Asked Questions

1. What Is Discriminatory Harassment?

Discriminatory harassment is unwanted conduct directed at a worker because of a protected attribute such as race, sex, disability, age, sexual orientation or religion, that a reasonable person would expect to offend, humiliate or intimidate. Intent is not the test.

2. Is a Hostile Work Environment Illegal in Australia?

Australia has no general hostile work environment claim of the kind that exists in United States law. The Sex Discrimination Act does make it unlawful to subject a person to a hostile workplace environment on the ground of sex. For other attributes you rely on the harassment and discrimination provisions of the relevant Act, the Fair Work general protections, state and territory law, and work health and safety duties.

3. What Is the Difference Between Discrimination and Discriminatory Harassment?

Discrimination is a decision or rule that disadvantages someone because of an attribute, such as a promotion they do not get. Discriminatory harassment is conduct directed at them because of that attribute, such as jokes or exclusion. They often occur together and need different controls.

4. Is Religion a Protected Attribute in Australia?

Yes, but not under a federal discrimination Act. There is no federal Religious Discrimination Act. Religion is a protected ground under the Fair Work Act general protections and under state and territory anti-discrimination laws, so religious harassment at work is unlawful.

5. Can One Incident Be Discriminatory Harassment?

Yes. A single incident can be enough if it is serious. That differs from workplace bullying under the Fair Work Act, which requires repeated unreasonable behaviour.

6. Is an Employer Responsible for Discriminatory Harassment by an Employee?

Generally yes. Employers can be liable for discriminatory harassment committed by workers in connection with their employment unless they can show they took all reasonable steps to prevent it. Training records, a working complaints process and evidence of action on earlier reports are what make that defence work.

7. Where Do I Report Discriminatory Harassment in Australia?

Internally first if it is safe. Externally, the Australian Human Rights Commission, your state or territory anti-discrimination body, the Fair Work Commission where adverse action was taken, or your work health and safety regulator. Australian complaints go to Australian bodies.

8. Does the Positive Duty Cover All Discriminatory Harassment?

No. The positive duty in section 47C of the Sex Discrimination Act covers sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and related victimisation. It does not extend to race, disability, age or religion. Your work health and safety duty is the obligation that reaches those.

Read More About Workplace Harassment:

• The 12 most common types of workplace harassment in Australia
• How to identify, prevent and respond to psychological harassment in the workplace
• How to identify, prevent and respond to physical harassment in the workplace
• How to deal with discrimination in the workplace as an employer
• How to handle religious discrimination in the workplace
• Psychosocial risk management: treating mental health risks like any other workplace risk