WHEN A WHS POSTER IS BOTH SEXUAL HARASSMENT AND DISCRIMINATION
Most sexual harassment cases in the workplace involve the offensive or unwelcome behaviour of a colleague. But not this one. It pits a female employee against two companies – and a problematic poster.
In late 2015, Reem Yelda had been working as a Custom Liaison Officer at Sydney Water for 14 years when she agreed to have her photograph taken to promote a work health and safety (WHS) campaign called SafeSpine. In April 2016, she saw the photograph on a poster near a men’s toilet at the company’s Ryde depot – and nearly collapsed with humiliation.
In the poster, the photograph appears as it was taken. Yelda is smiling, her right arm stretched skywards and her left arm pointed towards the ground. However, the poster design – to which Yelda hadn’t given her consent and said she hadn’t seen before it went up – came as a shock.
In big letters above her, are the words, “Feel great –” and, in even bigger letters, “Lubricate!” In small letters beneath her is a two-line caption: “Kick off your SafeStarts by ‘warming up the joints’ / Ask a SafeSpine leader or specialists for ideas.”
On 11 April 2016, a male colleague saw the poster and sent Yelda an email, stating, “Hi Reem, just at Ryde depot and saw you advertising “Feel Great – Lubricate!” Great advice mate but a bit too much info for me!!!!” When Yelda told him of her humiliation, he suggested she complain.
She did. Two apologies ensued – one from Sydney Water’s People, Leadership and Culture department, and the other from Vitality Works, the company that created the poster – accompanied by an agreement to remove all the posters immediately. However, Yelda didn’t return to work. Instead, she launched two separate legal actions against both Sydney Water and Vitality Works. And, on 1 October, 2019, she won both.
The cases went to the Civil and Administrative Tribunal, New South Wales, where Yelda represented herself. The Tribunal found that both Sydney Water and Vitality Works had contravened section 22B of the Anti-Discrimination Act 1977 (NSW), which covers sexual harassment in the workplace. Furthermore, the Tribunal found that Sydney Water had contravened section 25(2)(c), which covers discrimination on the basis of sex in the workplace.
The poster as sexual harassment
The Tribunal determined that the display of the poster constituted sexual harassment on three main grounds, in that it:
- was “unwelcome” conduct
- was “conduct of a sexual nature in relation to another person” and
- occurred “in circumstances in which a person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated”.
“Whether or not conduct is unwelcome is decided by a subjective test,” says Fay Calderone, partner, employment and workplace relations law, Hall & Wilcox. In other words, Yelda herself must have regarded the conduct as uninvited, as well as undesirable or offensive.
The Tribunal found this was the case, stating, “Whilst Ms Yelda agreed to have her photograph taken, she did not consent to the final form of the poster and, in particular, the text that appeared above it with the word, ‘lubricate’.” Furthermore, “she says that she was embarrassed, upset, affronted, offended and humiliated by the final form of the poster and the fact that it appeared at the workplace in a prominent location and in a prominent way.”
The second and third grounds are determined differently. “The question of whether or not the display of the poster was conduct of a sexual nature is decided by an objective test. It’s not about what Vitality Works or Sydney Water intended, but how a reasonable person would view it, in all the circumstances,” says Calderone.
Key to this is the meaning of the word “lubricate”.
Part of the defence was that lubricate had been used before by the WHS campaign, including in its training sessions. But not all staff actually partook in the training, including Yelda herself.
The Tribunal concluded that “lubricate” was intended to refer to “the generation of synovial fluid upon movement of the joints by Yelda performing a stretching exercise.” But it said the “ordinary, reasonable reader” could get the impression that “Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs, which gives her sexual pleasure,” based on common, colloquialised, sexualised connotations of “lubricate”.
Though an objective test can’t rely on context, the Tribunal did think it noteworthy that both companies apologised to Yelda and took the posters down when she complained. If they genuinely felt her interpretation was unwarranted, why would they have been so quick to respond?
Alex Newton, lawyer and author of The Business of Human Rights, says an understanding of the word “lubrication” as a reference to “the development of synovial fluid within the joints” “appears overly technical and reliant upon specialist knowledge of human physiology in order to be understood as the Respondent claims to have intended.”
Calderone says, “My immediate reaction on seeing the poster was, ‘How could this even have happened?’ Looking at it objectively – outside the SafeSpine campaign – you can see the potential for Ms Yelda’s photo to be taken out of context and for her to be perceived as a sexual object, especially in a male dominated work environment.”
The poster as discrimination
When it came to discrimination on the basis of sex, only Sydney Water was found culpable. According to Section 24 of the Anti-Discrimination Act 1977 (NSW) this involves a perpetrator treating another person, on the grounds of their sex, less favourably than the perpetrator would treat someone of a different sex in the same circumstances.
There were some digital images of posters that had men next to the same “Feel Great – Lubricate!” slogan. But there was some disagreement as to whether they were actually displayed. Regardless, says Calderon, “The Tribunal found that Sydney Water’s treatment of Ms Yelda was a form of discrimination on the basis of sex, because, although the photographer had also taken photos of male employees, the men were portrayed differently.”
It gave several reasons for this, including the fact that Yelda was photographed alone, while the men were in groups of two or three, in a classroom setting “less suggestive of intimate personal sexual activity.”
Takeaways from this case
“This case underlines the importance of every human resources department having robust policies and procedures concerning harassment and discrimination. These should be reviewed and updated regularly and disseminated through ongoing all learning and training programs for all employees. It’s not enough to set and forget,” says Newton.
“Organisations also need effective complaints mechanisms to deal with allegations of harassment and discrimination when they occur. In addition, there should be strict approval processes in place for all promotional materials and use of images, even if they are intended for internal use only.”
Calderone says, “Dysfunction perpetuates. You need to pick up on the small stuff, because it can lead to the big stuff. It’s not only important to create a diverse workplace, it’s also important to ensure that everyone coming into that workplace is treated inclusively and respectfully.”
DISCLAIMER: This article is general ONLY in nature and is not advice
First published by HRM Online, 17 October 2019