Managing people

Unwelcome conduct of a sexual nature: appeal dismissed 

Do you think it’s a defence against liability for sexual harassment to say ‘We didn’t mean it that way’? Read about an employer who disregarded how a worker might feel about having her photo used.

24 September 2021

When a worker objected to her photo being used – without her consent – in a poster with the caption ‘Feel great – lubricate!’, her employer was found to be liable for sexual harassment under the Anti-Discrimination Act 1977 (NSW). The company appealed the decision, was knocked back, appealed again, and was knocked back in the Supreme Court.

How was the poster ‘sexual harassment’?

A Sydney workplace health service provider was engaged by a major utility to deliver an injury prevention program with a ‘safe spine’ theme. A worker agreed to have her photograph taken for the purposes of the WHS campaign, but she was not informed about the wording that would be used on the poster.

While the poster was ostensibly intended to encourage workers to ‘warm up the joints’ with exercise before undertaking strenuous physical activity, the most prominent words on the poster contained sexual innuendo that was obvious to the employees at the woman’s workplace, where the woman was the only female worker.

After the poster was put up in her workplace, she felt humiliated, offended and that she was ‘treated like a sex object’. It was later conceded that the poster was designed to convey the safety message in a male-dominated workplace.

She responded by successfully suing her employer and the WHS service provider in the NSW Civil and Administrative Tribunal for sexual harassment and discrimination. 

The law on sexual harassment

Engaging in ‘other unwelcome conduct of a sexual nature’ in relation to a person, in circumstances in which a reasonable person would have anticipated that the ‘person would be offended, humiliated or intimidated’ is a breach of the NSW Anti-Discrimination Act (s 22A). The woman was awarded $200,000 in damages from her employer and the WHS service provider, who produced the poster.

The WHS service provider appealed the decision, arguing that they were a ‘third party’ and not responsible for the display, publication and distribution of the poster. The tribunal’s appeal panel, however, dismissed the application, confirming they were responsible ‘both legally and factually for printing and displaying’ the offensive poster.

The service provider then applied to appeal against the appeal panel’s decision.

In the Supreme Court

One of the arguments the WHS service provider put forward was that the depiction in that context of a woman feeling great because she lubricates could not amount to sexual harassment because its sexualised message was not ‘explicit’. In response to this, one of the judges commented that the sexualisation of women in the workplace is often not explicit.  

‘Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod, these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome, she said, adding that the power of implication is well understood in the field of defamation, and ‘in the nature of things, the sexual implication is perhaps the most powerful of all.  

‘The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries,’ she said.

What is unwelcome conduct of a sexual nature?

The court held that there are two parts to the question of whether conduct amounts to ‘other unwelcome conduct of a sexual nature’ for the purposes of the definition of sexual harassment in the Anti-Discrimination Act. 

Whether the conduct is ‘conduct of a sexual nature’ is a question of fact, ascertained objectively. Whether the conduct is ‘unwelcome’ is a subjective question determined by reference solely to the complainant’s state of mind.

The court found that the appeal panel had made no error on questions of law, and dismissed the WHS service provider’s appeal.

The bottom line: Whether conduct is ‘unwelcome’ is a subjective question determined by reference only to the complainant’s state of mind. The subjective intention of the alleged perpetrator is not an element of sexual harassment.

Read the judgment: Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 (19 July 2021)

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