What Is Discriminatory Harassment

Discriminatory harassment is unwelcome conduct directed at a person because of a protected attribute such as race, sex, gender identity, disability, age or religion, where a reasonable person would expect it to offend, humiliate or intimidate. It sits where discrimination and harassment meet, and it is the category employers most often misfile.

The distinction that matters is the reason for the conduct. General bullying is repeated unreasonable behaviour towards a worker that creates a risk to health and safety, and the reason for it may have nothing to do with who the person is. Discriminatory harassment targets the attribute itself. A manager who berates the whole team may be bullying. A manager who mocks one worker’s accent or their disability is doing something else, and it is captured by anti-discrimination law as well as by health and safety duties.

Two practical points follow from that. Repetition is not required. A single serious incident can amount to unlawful harassment, whereas bullying generally turns on a pattern. And conduct aimed at nobody in particular still counts if it creates a hostile environment for someone with that attribute, which is how jokes and group chats end up in investigations.

Getting the category right changes what you have to do. It determines which law applies, whether the positive duty is engaged, how the investigation runs, and what a fair outcome looks like. Filing a discriminatory harassment complaint as a personality clash is one of the more common and more costly mistakes.

The Australian Human Rights Commission handles complaints of harassment based on protected attributes under the federal Acts. This is general information rather than legal advice, and obligations vary by state and territory.

The articles tagged here explain how discrimination, harassment and bullying overlap and where they differ. To train your people on both sides of the line, see Sentrient’s equal employment opportunity course, workplace bullying course and sexual harassment course.