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Innuendo in WHS poster slogan was discriminatory

The poster discriminated against the worker whose photo featured on the poster.
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Innuendo in WHS poster slogan was discriminatory

Innuendo in WHS poster slogan was discriminatory

28 October 2020

By Gaby Grammeno

A tribunal has found that the sexual innuendo intrinsic to the slogan on a safety campaign poster discriminated against the worker whose photo featured on the poster. The female employee – pictured smiling and pointing to the text ‘Feel great – lubricate!’ – said that when she saw it, she felt embarrassed, upset and humiliated, especially when she received a number of texts and emails from male colleagues responding to the slogan’s sexual suggestiveness.

The context of the poster was a ‘SafeSpine’ campaign aimed at reducing musculoskeletal injuries. Its wording was ostensibly meant to remind workers of the import of previous training by conveying the message that regular exercise would generate synovial fluid in the joints, helping to keep them lubricated in order to minimise wear and tear.

The SafeSpine campaign and the offending poster

The woman was a customer liaison officer with a major water utility. In 2015 she was called to the site of a leaking water main, where she was engaged in training an electrician to become a customer liaison officer.

A workplace health services provider had been engaged by the utility to devise and deliver the SafeSpine campaign to some of the organisation’s workforce, and one of its employees was present at the site that day to take photos for the campaign. The woman and a male colleague both agreed to have their photos taken for use in campaign posters.

The poster with the female worker was printed and duly put up for display at one of the utility’s depots, where it was positioned just outside the men’s toilet and the civil delivery lunchroom.

When the woman first saw the poster she was dismayed, as she had not been informed of the text that would accompany her photo. Though the words ‘SafeSpine Injury Prevention Program We’ve got your back’ were printed in one corner with the campaign’s logo, and the words ‘Kick off your SafeStarts by warming up the joints. Ask a SafeSpine leader or specialist for ideas’ were beneath the photo in much smaller lettering, the most prominent text was the caption above the photo – ‘Feel great – lubricate!’ – with the word ‘lubricate’ in large, thick letters being the most prominent text on the poster.

The woman felt that the use of the words ‘lubricate’ and ‘feel great’ would be likely to suggest to many male workers the use of lubrication during sexual acts, and that in conjunction with her photo, the poster conveyed an imputation that she was a sex object at her workplace.

After she complained about the poster, the utility and the WHS services provider were both found to have contravened s 22B of the NSW Anti-Discrimination Act 1977, which deals with sexual harassment. Both the utility and the WHS services provider appealed the decision.

The utility was also found to have contravened s 25(2)(c) of the Act, which deals with discrimination against an employee on the ground of sex. The utility appealed against that determination.

The two appeals were heard by the Appeal Panel of the New South Wales Civil and Administrative tribunal.

In the tribunal

The WHS services provider submitted that the poster’s sexual connotation was never designed or intended. Likewise, the utility argued that there was nothing sexual or sexualised in the poster, and the fact that someone may (mis)represent its slogan does not mean that the poster or the employer’s conduct in approving it was of a sexual nature.

The tribunal, however, took the view that if a poster makes sexually suggestive remarks about an employee – or holds up the employee to possible embarrassment or humiliation of a sexual nature – its display at the employee’s workplace can amount to sexual harassment of the employee in question.

It found that the poster did not immediately suggest the intended meaning of the generation of synovial fluid upon movement of the joints by the employee performing a stretching exercise, nor was its WHS context immediately obvious. Rather, the poster was ‘reasonably capable of colloquially conveying the sexualised connotation’.

The tribunal compared the poster with one featuring a male worker photographed on the same day, on which the suggestive slogan was not used.
Both appeals were dismissed.

The bottom line: Making sexually suggestive remarks about an employee or subjecting them to possible embarrassment or humiliation of a sexual nature may amount to sexual harassment.

Read the judgment

Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210 (13 October 2020)

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