'Feel great – lubricate!': Worker unwittingly posed beneath slogan claims discrimination

Cases

'Feel great – lubricate!': Worker unwittingly posed beneath slogan claims discrimination

Workplace poster of employee that said “feel great, lubricate” was sexual harassment of her

A woman who discovered a photo of her had been included in a workplace health poster in a way that could have sexual connotations was sexually harassed. She had not seen the posters before they were displayed.

The decision took into account the context and circumstances in which the posters were displayed at the workplace and concluded that a reasonable person would have felt sexually offended and humiliated in those circumstances. Both her employer and the company that designed the poster were held jointly liable.
 

Facts of case


The employee worked for Sydney Water Corporation as a Customer Liaison Officer in what was a predominantly male blue-collar work environment. Sydney Water outsourced to Vitality Works Australia Pty Limited (Vitality) a campaign to improve workplace health and safety by encouraging employees to “lubricate” their joints prior to engaging in physical tasks at work. The campaign was called SafeSpine. While she was working away from her usual work site, a photographer from Vitality asked to take her photograph to be used in workplace posters as part of the campaign, to which she agreed.

Several months later, she saw one of the posters for the first time at a Sydney Water branch depot, after first being alerted to the posters by co-workers. It featured her photograph and the most prominent words were “Feel Great: Lubricate”. The poster was displayed near the men’s toilet and the lunchroom.
 

Logos for both Sydney Water and Vitality appeared on it.


The employee claimed that she was shocked and humiliated by seeing the poster, and received comments expressing surprise and implying that the contents had sexual connotations from people who knew her. The posters were displayed at several depots of Sydney Water. She complained to management and requested they be taken down. Sydney Water agreed to do so and she also received apologies from both Sydney Water and Vitality management, but there was disputed evidence as to whether all the posters had been removed.

The employee acknowledged that she gave permission to be photographed and used in the campaign, but was not made aware of the design and content of the posters before they were displayed, in particular the slogan. She would not have approved the final design if asked.

She claimed that use of the word “lubricate” had sexual connotations, as it colloquially referred to the use of lubricants during sexual acts. The words “feel great” could have similar connotations. She added that the comments from co-workers indicated that they too believed the posters were offensive and could have sexual connotations.

As the conduct of displaying the posters was unwelcome to her and she felt offended and humiliated by them, she claimed they amounted to sexual harassment.

She claimed that both Sydney Water and Vitality were vicariously liable for the conduct.

A male co-worker was also photographed, but not used solo in a poster. The posters of men had two or three male employees, and their poses were less suggestive. The employee claimed that this indicated that she was treated less favourably than the men who were photographed. Both respondents claimed they used employees of both genders in the campaign in order to show diversity.

Sydney Water claimed that the posters were only displayed in areas that were normally used to present information to employees. It denied that the posters were sexual harassment, and said it only agreed to have them removed because the employee had not consented to their display and requested removal. It also claimed that she had waited six weeks before complaining about the posters. The employee claimed that she had been embarrassed at first and did not know what to do about them, also that she had been involved in a car accident close to the day of seeing them and took some time off work.

The employer claimed that “lubricate” in this context would only be perceived as using lubrication to warm up joints before exercising – in other words, it had a widely-understood medical meaning. The meaning was made clear by the smaller print in the posters, but “lubricate: feel great” was in much larger print.

Vitality claimed that it had used the word “lubricate” in several other similar campaigns and never received a complaint or reaction of laughter from it. Vitality later adopted a different slogan in campaigns. Vitality also disclaimed liability, saying that it only designed the poster and did not make the decisions to publish or distribute it. However, the Tribunal said it was aware of what Sydney Water was likely to do with the posters. Sydney Water in turn claimed that Vitality, not it, had approved the content of the posters. Therefore, both Sydney Water and Vitality were jointly liable for the conduct. Vitality’s actions were authorised by Sydney Water.
 

Decision


The NSW Civil and Administrative Tribunal found that the contents of the posters and the location of their display amounted to unwelcome conduct of a sexual nature. The contents could be construed as sexually suggestive and embarrassing and humiliating to the employee. Relevant factors included the reactions of other employees, including the employee’s managers; the work environment being a predominantly male blue-collar one; where the posters were displayed; the sole use of a woman in them and her hands pointing to the word “lubricate”.

This was the case even though it was not the intention of the posters or those who designed, authorised and displayed them, and the fact that smaller print on the poster made the context and intended meaning clear.

In all the circumstances of the case, a reasonable person in the employee’s situation would have been offended and humiliated by the posters, and it was reasonable to attribute sexual connotations to them.
The employee had also been discriminated against on the ground of sex by being treated less favourably than a male employee would have been. The posters featuring men were less likely to cause offence or humiliation.

Therefore, both Sydney Water and Vitality had breached the NSW Anti-Discrimination Act 1977.  
This judgment ruled only on the issue of liability, with a further hearing required to assess damages.

The bottom line: Had the employee been allowed to view the poster content before it was approved and displayed, this case would very likely not have occurred. Employers should seek an employee’s permission and prior approval of the content before publishing material that features photos of, or names, the employee.

The content should also be reviewed carefully for possible discrimination, or other potential adverse impact on the employee.

The case also demonstrates how the vicarious liability provisions of sexual harassment legislation can ensnare management consultants as well as the employers who engaged them.
 

Read the judgment


Yelda v Sydney Water Corporation, Yelda v Vitality Works Australia Pty Limited, [2019] NSWCATAD 203, 1 October 2019
 
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