Under the Racial Discrimination Act, offensive behaviour in the workplace based on racial hatred can be against the law. Racial hatred is defined as something done in public that offends, insults, humiliates or intimidates a person or group of people because of their race, colour or national or ethnic origin. The Act contains exemptions to protect freedom of speech.

Under the Sex Discrimination Act, offensive behaviour that amounts to sexual harassment is prohibited in the workplace and other areas of public life. Sexual harassment is defined as unwelcome sexual conduct that, in the circumstances, a reasonable person would anticipate the possibility that the person being harassed would feel offended, humiliated or intimidated.

Offensive behaviour can amount to discrimination when the offensive behaviour means ‘a person, or group of people, is treated less favourably than another person or group because of a personal characteristic that they have such as their race, sex, age, disability or sexual orientation, gender identity or intersex status.

Employers can be liable for the acts of their employees. This is called ‘vicarious liability’.