Safety poster becomes costly reminder that horseplay can still amount to sexual harassment

Independent contractor and workplace consultant, Vitality Works Australia Pty Ltd (Vitality Works), and NSW government-owned corporation Sydney Water (Sydney Water), have each been held jointly liable for sexual harassment after displaying a ‘sexually suggestive’ poster aimed at promoting work health and safety.

The poster itself was designed by Vitality Works as part of a “safe spine” campaign, and depicted a smiling Sydney Water employee with an overlayed caption, ‘Feel great – lubricate!’. While the employee had agreed to having her picture taken, she had not agreed to the caption used.

With changes to Commonwealth sexual harassment laws having taken effect in September, the ruling serves as a timely reminder of employer’s obligations to ensure the workplace is free from sexual harassment.

The fact circumstances of the case

In 2019, the NSW Civil and Administrative Tribunal heard that the employee had ‘nearly collapsed’ when she first saw the poster outside of the male bathrooms at her workplace. It later ordered that she receive $200,000 in damages, finding that both Sydney Water and Vitality Works had engaged in sexual harassment, breaching s.22B of the Anti-Discrimination Act 1977 (NSW) (amongst other things).

Vitality Works sought to challenge the decision this year, alleging it was not responsible for any sexual harassment, because it was a ‘third party’ and was not responsible for the publishing or display of the poster; it had merely designed it. It further sought to argue that the image displayed on the poster was not ‘sexually explicit’ and so could not meet the legislation’s definition of ‘conduct of a sexual nature’.

However, the NSW Court of Appeal unanimously dismissed Vitality Works’ appeal on all grounds. In fact, it was quite critical of the arguments made. Instead, the Court noted that the sexualisation of women in the workplace is not always ‘explicit’ and that such an argument ‘overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.’

The Court also emphasised the established principle that sexual harassment can include sexually suggestive jokes and comments, including those with a “double meaning”. The concept should not be read down or limited, and so called ‘horseplay’ (as Vitality Works referred to it) was not excluded.

The decision significantly expands the scope of liability in relation to sexual harassment claims and is consistent with a growing trend of awareness and heightened responsibility and liability for employers.

New sexual harassment laws

In the wake of the #MeToo and other similar movements, courts and tribunals have begun taking a more generous approach when awarding damages to employees who have fallen victim of sexual harassment or sexual discrimination. For example, a Queensland Commissioner recently set aside an award of $35,000 for a laundry worker who had been sexually harassed in the workplace, determining the more appropriate award for general and aggravated damages was $130,000 having regard to her ‘torment’[1].

Further, following the parliamentary enquiries into workplace sexual harassment, and the introduction of the Respect at Work provisions into the Fair Work Act 2009 (Cth) and federal anti-discrimination legislation, there has been a shift in dialogue confirming the position that sexual harassment is not only a discrimination issue, but also, an important work health and safety issue which employers have an obligation to prevent against.

Specifically, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) commenced on 11 September 2021. The Respect at Work Act:

  • expands the application of the Sex Discrimination Act 1984 (Cth) to interns, volunteers and self employed workers;
  • prohibits sex-based harassment;
  • extends the timeframe for a person to make a complaint of sexual harassment to the Australian Human Rights Commission (from 6 months to 24 months);
  • expands the anti-bullying jurisdiction of the Fair Work Commission to cover sexual harassment meaning the Fair Work Commission can issue a “stop sexual harassment order”; and
  • amends the Fair Work Act to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable. The definition of ‘serious misconduct’ in the Fair Work Regulations has also been amended to include sexual harassment.

Sexual harassment is a complex and sensitive matter for many employers to manage. However, the recent changes in the law and the Vitality Works case is an important and timely reminder that:

  • sexual harassment need not be explicit – innuendo or ‘horseplay’ is sufficient;
  • intent is not necessary for a person or business’ actions to amount to sexual harassment; and
  • contractors can be found liable for sexual harassment – even when the harassment occurs outside of the workplace.

Practical tips for employers

In the current climate, now is the opportune time for employers to take stock of their business and practices, and to ensure they are cognisant of and adhering to increasing obligations to protect against sexual harassment in the workplace. Employers should:

  • implement, or review and update policies and procedures as they relate to discrimination and harassment at work – this includes by having in place support mechanisms for complainants, and putting in place practices for how to conduct a procedurally fair, and sensitive investigation into allegations of sexual harassment or misconduct, as well as appropriate disciplinary and other procedures;
  • implement or review training programs and consider refreshed training on acceptable workplace behaviours;
  • implement or review internal complaints procedures to ensure there is a clear process in place for sexual harassment and sex-based harassment complaints to be dealt with appropriately and promptly, and that records are kept appropriately; and
  • consider other measures, practices and policies aimed at preventing sexual harassment from occurring in the first instance – some employers have introduced body alarms, while others have launched education campaigns.

[1] Golding v Sippel and The Laundry Chute Pty Ltd [2021] ICQ 14 (6 August 2021)

2018 Mobility Conference – Melbourne

Why recruitment bias is bad for business

When you’re ready to next hire a new team member, have a good look around you. At the same time, peer into the mirror. Is your team disturbingly familiar? Is there a ‘same-same, but different’ approach in your hiring practices? If this is the case, you could be missing out on finding someone who can bring more to the job.

Not looking outside your comfortable circle will hamper innovation, development, and customer relationships. “If you constantly hire people who are just like you, your perspective is limited. so when it comes time to challenge the status quo, to look for that new innovative product or service, those questions never get asked,” says Asnicar.

While it’s true that people may enjoy hanging out with like-minded types in their leisure hours, this is not always the case at work. For example, a division of an aircraft engine company experienced 100 per cent turnover within 12 months after people discovered that they didn’t like working with people who were too much like them.

Why bias is bad

“Implicit bias actually affects the small business owner because they hire firstly in their own likeness. Small businesses don’t have the luxury of hiring for perspective. They often have to have multiple characteristics in one person, because they don’t have a big team,” explains Steven Asnicar, CEO of consulting firm Diversity Australia, who notes there are inherent dangers in the like-for-like approach to recruitment.

Then there’s your customer. Australia’s a multicultural country. We’re young, old and in between; male, female and non-gender specific. And it’s wise to understand the differences in your customer base by incorporating a little difference in your team as well. “If you don’t reflect your customer base, and you don’t understand their needs then you can’t service them properly,” says Asnicar.


Different shades of bias

The term ‘implicit’ (or unconscious) bias surfaced earlier this century. It usually signified an unconscious lack of racial diversity or discrimination against a person or persons on the grounds of their race. This is still the case but other forms of bias have come to the party. They include an unconscious bias on gender grounds, sexuality and age. This has led many big businesses to train their people to recognise inherent biases, with a view to creating more diverse workforces.

“Age bias is becoming the most discriminative component of unconscious bias,” says Asnicar. “People are staying longer in the workforce, so that is making them more protective [of their roles] so they tend not to want to hire younger people.” This bias also works in reverse with young teams feeling that older people may not make the cut because of cultural fit.

Lots of smaller businesses hire family members. It’s natural to have an affinity with your kinfolk. They represent continuity – and in the case of children – longevity. But there are dangers to having too many family members involved.

“I often feel it’s very difficult for individuals [who are not related] to work within a family business, because they feel they are under siege the whole time,” notes Asnicar. “No matter what they do, they feel they will be at the bottom of the system. Meritocracy is something everybody craves. They like to get the job on their own merits. With family intervention, that often goes out the door, because families look after family first.”

How to battle bias

The best way for smaller business to focus on fairer hiring is to have a well thought-out procedure around their recruitment processes. ”Small businesses should start structuring their recruitment frameworks in a way that best represents their needs in the future,” says Asnicar.

Have a good look at the makeup of your team and determine what’s missing in the group. When it comes to sifting through the pile of CVs, Asnicar advises that you arrange to have names, genders and ages masked if you can, and avoid over-scrutiny. “I think when you have a small business, you tend to look at every part of the CV and your biases sneak in. A checklist helps guide you though the process and lets you know whether you have made assumptions about a person.”

Employers have begun to use social media platforms, such as Facebook, as the great unmasker of what future employees are actually like. But Asnicar recommends that you resist that temptation. “If you judge their potential job performance and work ethic on that, then you are probably doing yourself a disservice, because their profile may not truly represent them. People at work tend to be more conservative and work hard, as opposed to on Facebook, where they tend to let go and do a few wild things, like posting stupid photos.”

When it’s time to interview, Asnicar again suggests that an unvarying format is the best way to keep bias out of the equation. “You should have a very standard framework for making sure you are measuring an apple with an apple. The consistency of interviewing is now really important, given the amount of legal challenges there are now, where bias is cited.”

Try to have at least one other person in the interview with you, so one person can ask the questions and the other can listen to the candidate’s answers. This allows you to focus on the person, not the baggage you may imagine surrounds them. “You need to have everyone involved in the recruitment really engaged in the process. They must understand that there are legal obligations to treat candidates with respect, fairness and equity and attempt remove unconscious biases from the discussion,” notes Asnicar.



Diversity as a business advantage

Gender equality core element of Australia’s foreign policy: Envoy

ISLAMABAD – Australian High Commissioner to Pakistan Margaret Adamson Monday said that gender equality and women’s empowerment was a core element of Australia’s foreign policy.

Adamson welcomed Australian gender equality advocate Elizabeth Broderick to Pakistan on a visit to engage business leaders on promoting gender equality in the workplace.

Broderick, a former Australian Sex Discrimination Commissioner (2007-15), is the Global Co-Chair of UN Global Compact Women’s Empowerment Principles, Special Adviser to Under-Secretary UN Women on Private Sector Engagement, and Founder of the ‘Male Champions of Change’ initiative – working with influential male leaders to become advocates for gender equality.

Welcoming the visit, High Commissioner Adamson said that gender equality and women’s empowerment to play their rightful, equal role in economic development and society as a whole was a core element of Australia’s foreign policy and underpinned the Australian government’s development partnerships – with Pakistan and globally.

“Australia’s aid investments in Pakistan are designed to ensure that women benefit from all our economic growth-related programs. I am hopeful that Broderick’s visit and her engagement with private sector leaders will encourage the development of strategies and policies to maximise the participation of women throughout Pakistan’s economy,” she added.

Broderick will visit Islamabad, Lahore and Karachi to share experience and to discuss the business case for gender equality, building on initiatives already gaining traction among the business community in Pakistan, including the UN Women Empowerment Principles.

She will also meet with women members of the national and provincial assemblies, government officials and representatives of UN agencies and the World Bank and lead discussions on accelerating economic growth and innovation in Pakistan by harnessing the talent and potential of its women.

Broderick welcomed the opportunity to meet with Pakistan’s private sector leaders and prominent women representatives.

“Gender equality and women’s economic participation are key social and economic issues for both our nations.  I am excited to be meeting with business leaders and other influential men and women to share innovative strategies, learn from each other and discuss how to accelerate the pace of change,” Broderick said in her message.

The Economist listed Broderick as one of the World’s Top 50 diversity figures in public life in 2015.


Maybe Google Need to Google the meanings of Diversity, Culture, Equal Opportunity and Unconscious Bias

Google has fired the employee who wrote an internal memo suggesting men are better suited for tech jobs than women, according to a person familiar with the matter.

The employee’s firing followed an email earlier in the day from Google chief executive Sundar Pichai to the company’s employees, saying that the memo writer violated company policy. Google parent Alphabet hasn’t named the employee.

Mr Pichai is the most senior executive to respond to a growing controversy that in recent days has raised difficult questions for one of the world’s largest companies on how it would handle an employee offering opinions that were, to some, unpopular and offensive.

Last week, a Google engineer published an internal memo that criticised Google’s efforts to increase diversity at the company, arguing the program discriminated against some employees.

The employee also said that men were generally better at engineering jobs than women and that a liberal bias among executives and many employees makes it difficult to discuss the issue at Google.

“We strongly support the right of Googlers to express themselves, and much of what was in that memo is fair to debate, regardless of whether a vast majority of Googlers disagree with it,” Mr Pichai said in his email to staff.

“However, portions of the memo violate our code of conduct and cross the line by advancing harmful gender stereotypes in our workplace,” he said.

He added that the company’s code of conduct requires “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.”

The memo went viral inside the company and was publicly criticised online by Google employees. Google’s diversity chief also criticised the memo in a note to employees on Saturday night.

The employee’s firing could spark a larger debate inside and outside Google about free speech. Mr Pichai said he scheduled an employee town hall to discuss the issue on Thursday.


Viral Google email: ‘Men better suited to the job

Google’s new diversity chief criticised the contents of an employee’s memo that went viral inside the company for suggesting Google has fewer female engineers because men are better suited for the job.

Danielle Brown, Google’s vice president for diversity and inclusion, sent a letter to employees Saturday saying the employee’s memo “advanced incorrect assumptions about gender” and is “not a viewpoint that I or this company endorses, promotes or encourages,” according to a copy of the statement published by Motherboard, which earlier reported on the employee’s memo.

The Google employee argued company initiatives to increase diversity discriminate against some employees, and that a liberal bias among executives and many employees makes it difficult to discuss the issue at Google, a unit of Alphabet Inc., according to a copy of the memo published by Gizmodo.

Some Google employees denounced the memo on Twitter, and Motherboard reported it was being shared widely among staff. That backlash drew a response from Ms. Brown, who joined Google in late June.

“Given the heated debate we’ve seen over the past few days, I feel compelled to say a few words,” she said in the statement. “Diversity and inclusion are a fundamental part of our values and the culture.”

When reached for comment, a Google spokesman referred to Ms. Brown’s statement and an additional statement posted online by Google engineering executive Ari Balogh, one of the managers of the employee who wrote the memo. Mr. Balogh wrote the memo “troubled me deeply” because it suggested “most women, or men, feel or act a certain way. That is stereotyping, and it is harmful.”

The controversy over the memo comes as the tech industry struggles with gender and diversity issues. Many tech companies have admitted a majority of their employees are white or Asian men, particularly in technical and leadership roles. Some tech companies and investors have faced a string of sexual-harassment scandals over the past year.

For its part, Google is pushing back against a Labor Department investigation into its pay practices that spilled into court recently.

The Labor Department in January sued Google for more compensation data as part of a routine audit into the company’s pay practices, a probe that is possible because Google provides advertising and cloud services to the federal government. Last month a judge ruled Google had to turn over a narrower set of data than what the department sought, saying that the request was too broad and invaded Google employees’ privacy.

During the case, a Labor Department official testified investigators found evidence that Google systematically pays women less than men.

Google has denied the accusations, saying its internal analyses have shown no pay gap among Alphabet’s nearly 76,000 employees. The Labor Department hasn’t formally charged Google with any wrongdoing.

Google said in its annual diversity report in June that 31 per cent of its employees are women, unchanged from a year prior. The percentage of black employees also was unchanged at 2 per cent, and the number of Hispanic workers increased by 1 percentage point, to 4 per cent. Most Google workers remain white and Asian men.

President Obama’s Senior Advisor and Elizabeth Broderick Join Women World Changers

Early Bird Ends Friday 28th July – SAVE $200

Diversity Australia is proud to partner with The Growth Faculty in presenting Women World Changers, the premier, all-inclusive, one-day leadership summit designed to drive critical dialogue on the impact and economics of women, diversity and culture on business growth.

Attended by Australia’s top business executives, government and community leaders, both male and female, Women World Changers brings a proven lineup of experts to present the most critical leadership requirements for success in leading and managing Australia’s workforce of the future.

This year our outstanding speaker lineup is headlined by Valerie Jarrett, Senior Advisor to President Obama and Elizabeth Broderick, Australia’s longest serving Sex Discrimination Commissioner (2007 – 2015).

Don’t miss crucial learnings…

  • Adaptability, innovation and agility: How diversity is driving modern business innovation.
  • The implication of the current political and economic landscape and what this means for your business and investments.
  • The economic imperative for closing the gender gap – “Women are half the world’s working-age population but generate only 37% of GDP.” McKinsey
  • Insights into behavioural science; the differences and similarities between men and women and the importance of gender balance in leadership.
  • How to drive cultural change and workplace equality through courageous leadership and engaging middle management.
  • Challenges and opportunities for women’s full engagement in the workplace.
  • Millennial ambition: What drives this hyper-connected, tech savvy generation that will make up 75% of the workforce by 2030? How can leaders harness their contribution?
  • Removing barriers that impede economic development, technology, innovation and business growth.
  • Building a resilient organisation: What are the global trends shaping the Australian economy and how can we invest in employee skills to increase relevance and resilience.





Non Member Rate: $995 | Diversity Australia Rate: $795 |

Ten Or More Gender Balanced Groups: $650
Early Bird Ends Friday 4th August – Save $200

Platinum Tickets: $1595

*Platinum tickets include reserved front of house seating, an intimate VIP lunch with WWC speakers, full conference material, access to VIP lounge area and cocktail reception

How Australians Are Playing Video Games In 2017

The Digital Australia study, an annual look at the way Australians are playing video games, was released today. It features all the statistics that you might expect from such a survey. Yep, pretty much everyone in Australia is playing video games. Yep, video games aren’t just for kids. Yep, people play video games to stay sharp, healthy and happy.

Every statistic one needs to arm themselves with when dealing with the powers that be is there.

But there are also a few interesting nuggets of information in there for those of us who are already on board with the video games.

For example, did you know that 92% of people play games with other human beings? I mean I suspected that number would be high. I didn’t know it would be that high.

Did you know that 66% of people want more gender diversity in video game characters.

That 65% of people want more age diversity in video game characters.

Did you know that 28% of gamers have shared videos of themselves playing. That’s insane to me, but absolutely a sign of the times.

3135 people from 1234 households were surveyed for the Digital Australia 2018 study.

God bless Jeff Brand and the good folks at Bond University. Their work has been instrumental in providing the numbers that allow the IGEA to represent the games industry at the government level. What’s interesting to me is how these numbers have settled. In 2007 only 79% of households had gaming devices. Now that number is 93% and has been since 2013 — almost as if games have arrived at that point of ubiquity and isn’t going anywhere. Supporting that — the average age of gamers has been steadily increasing ever since this research began. Almost as if we’re all getting older together — with video games.