Jokes and banter can amount to unlawful discrimination, sexual harassment or racial hatred in particular circumstances.

Under federal anti-discrimination laws, discrimination occurs when a person is treated less favourably than another person because of a personal attribute they have. Harassment or bullying through telling jokes can amount to discrimination.

Jokes and banter of a sexual nature can be sexual harassment if they are unwelcome and, in the circumstances, a reasonable person would anticipate the possibility that the conduct would make the person being harassed feel offended, humiliated or intimidated.

Example: A sales assistant told his co-workers he was gay. His manager subsequently started making ‘gay jokes’ about customers and insinuating that customers were his boyfriends. The manager thought that this was part of the banter that usually happened in the workplace. This could be discrimination on the grounds of sexual orientation, as well as sexual harassment.

Jokes and banter can also be sexual harassment where it is an indicator of a ‘sexually hostile’ environment, even if jokes made in the workplace are not aimed at a single person.

Under the Racial Discrimination Act, it is unlawful to do or say something in public that is reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. This can include racially offensive jokes in the workplace. The Act also contains exemptions to protect freedom of speech.

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