Judgy McJudgypants

And I don’t mean me.

How’s this for a loaded headline on the front page of the Sydney Morning Herald today: Employers brace for wave of copycat sex claims.

I guess ‘She made it up to get money and now other women will make it up to get money too’ was too long.

Keep in mind that Mark McInnes admitted he behaved inappropriately when he resigned, and only disagreed with a couple of minor things in the sexual harassment case, so Kristy Fraser-Kirk clearly didn’t make it up.

Some of the letters of demand also appear to mirror the legal strategy pursued by Ms Fraser-Kirk’s lawyers – claiming multiple breaches, including breach of contract, discrimination, and breaches of the Fair Work Act.

Oh, please. That’s like saying a defamation case is a copycat action because someone else has previously sued for defamation.

It is impossible to say whether these are cynical ”copycat” claims or a sign there are many women who have shared Ms Fraser-Kirk’s experience.

Impossible to say, but that hasn’t stopped Paul Bibby and Eli Greenblat (two blokes, by the way, but I’ll get to that in a minute) from saying it. It also clearly shows that they didn’t even bother to do any research for this story. A quick Google search reveals there were 75 sexual harassment cases in 2009/10, but that only 16 per cent of people who are sexually harassed brought any form of action (from a story in their own newspaper, by the way). They could also have done some basic journalism and gone to the Australian Human Rights Commission website for a factsheet on sexual harassment. The first line of this factsheet reads:

Despite 24 years of legislation, sexual harassment is still alive and well in our workplaces.

There’s also this from a national survey in 2008:

Around one in three women in Australia aged 18-64 have experienced sexual harassment in their lifetime. The majority of sexual harassment continues to be experienced in the workplace (65%).

But no, apparently it’s impossible to say that women are sexually harassed at work.

It seems the quote from Jennifer Neilsen, law at Southern Cross University, has gone over their heads:

”This was a very powerful and influential person whose position was terminated because of his behaviour – that’s a strong message,” Dr Neilsen said.

”My only concern is when people start blaming the victim – turning their attention from the inappropriate behaviour of Mr McInnes to the question of how Ms Fraser-Kirk made her claim. It takes a very brave woman to step forward … but if you have the media attacking her for that decision other women will view the process with fear.”

Yet if no other women launch high profile sexual harassment cases, the view will be that sexual harassment at work clearly does not happen. Because somehow this one woman is supposed to represent all women, in a way that never happens to high profile cases involving men. Paul Hogan’s tax case didn’t make everyone declare that all Australian celebrities who live overseas have unpaid tax bills. All male actors haven’t been tarred with the Matthew Newton brush.

In some of the newsrooms I’ve worked, there’s been bra snapping, arse grabbing, male colleagues who stare at your boobs all day, male colleagues who only talk to your boobs, rating the hotness and fuckability of female colleagues, women told what they can and cannot wear because men might be distracted by a knee, men pulling their female colleagues onto their laps (who said Mad Men was set in the past?), and I’ve been called a fucking slut because I didn’t clean up the kitchen after everyone dumped their dirty plates after lunch. And I’m not talking about things that happened 20 years ago – I’ve been a journo for less than 10 years. With this sort of harassment going on in their own workplaces, it’s pretty easy to see why the reporting of sexual harassment cases is clueless, and always attacks the women.

26 responses to “Judgy McJudgypants

  1. This reaction from the media is nothing if not predictable. And cross-making in the extreme! Let’s not forget that Kristy Fraser-Kirk is a filthy little money-grabber, obviously, because she’s not donating her punitive damages to charity like she said she would! Oh, wait, there were no punitive damages awarded. But let’s not let the facts get in the way of a good victim-blaming tirade.

    • Hi Spilt Milk, welcome to the News with Nipples. It’s her money, she can do whatever the hell she likes with it.

      It’s like those people who say they don’t give money to homeless people because they’ll only spend it on alcohol – failing to realise that once you give someone money, it is no longer your money and you have no say over how it’s spent.

      • ah well…not that I dispute people’s rights to do with their money as they please (both giver and receiver) but the predominant thoughts and practice from homelessness industry/research is NOT to encourage giving money to begging as most does in fact go to alcohol and drugs. In the short and long term this is not only dangerous health wise for the homeless person but prolongs their time on the street. It is also not effective for the service providers and creates greater problems for those trying to reduce homelessness. It is better to give to certain charities taht work towards long term solutions or buy a Big Issue. If you really want to given them something to ease their suffering on that cold day – a cup of tea or a sandwich is probably better.

        http://www.thamesreach.org.uk/news-and-views/campaigns/giving-to-beggars/faq/

    • She was never getting punitive damages, she was on track to lose the case. The word from her ‘legal’ team (which seems to have devoted itself to PR work rather than the legal kind) was that they were unlikely to reach a settlement – until the judge ordered that the names of the long list of aggreived women they intended to use against McInnes and DJ’s be released to the defence – all of a sudden less than 2% of her claim is enough money.
      She would have won the case and got several million had she engaged a decent lawyer who could be trusted not to bullshit about other claimants and who was aware that anonymous statements will never be acceptable forms of evidence or that the defence has a right to test any and all evidence.
      Instead DJ’s offered an amount of money designed to put the whole thing to bed, rather than an amount which would suggest they had any concerns over losing the case.
      I don’t blame her for not donating the money although her excuse is really splitting hairs. She will need it as she is virtually unemployable as a result of the media attention and the light in which they have portrayed her, some of it is justified a lot of it is not.

  2. Agreed. I have nothing to add to that post…..except pointing out the little extra dig in the SMH and the news last night that she won’t be giving the money to charity (to beef up the gold digger claims).

    WHY SHOULD SHE! I’m all for philanthropy and charitable giving but she sued DJs and McInnes for unlawful acts done to her personally. This is her compensation for her suffereing and her future and to pay her lawyers! Her career is now in the toilet (another punishment doled out to female victims who sue…no one else wants to hire them) she is going to need it. I hope she goes on a lovely holiday with it!

    Nb: I note the previous suggestion she made to give some money to charity from certain court case awards if sucessful – but it didn’t go to court and these damages/awards were therefore not given, consequently irrelevant.

    • Exactly. The story then goes on to say how great McInnes is at his job and is pretty much a job ad for him:

      Mr McInnes, who turned around the flagging fortunes of the retailer, can now start looking for a new job.

      Although his non-compete contract with David Jones rules him out from working for another department store in Australia until June 2011, as well as some other specific ventures, he is free to join other businesses including some of the nation’s leading retailers and fashion labels – if they will have him.

  3. To be honest, as a lawyer, I think Fraser-Kirk’s $37M punitive damages claim was a terrible tactical mistake, if not an abuse of process. It’s just so far away from anything we award in this country that it looks extraordinarily greedy. It’s also utterly without precedent. Once she’d done that, she was opening herself up for criticism and gold-digging claims, even though she said she was giving the punitive aspect of the award to charity.

    In addition, although it can legitimately be pointed out that she didn’t get any of the punitive damages she sought, if I had been her, I would have given some money to a charity for women (say $10,000) to deflect any criticism on that score, and to show my bona fides about protecting women from abuse.

    Nonetheless, I hope that that her claim acts as (a) punishment for them and (b) a deterrent for McInnes, DJs and as well as other companies not to let these kinds of things happen. My sister was terribly sexually harassed at one of her workplaces, so the more that people learn that this kind of thing is not acceptable, the better. And, as my sister said, if you can’t make them realise it’s wrong, at least hurt them in the hip-pocket (she sued as well, and settled for a modest amount, but at least it was something).

  4. This makes me just….fume. I loathe sexual harassment, besides being illegal it’s the most gross unprofessionalism. This case proves McInnes’s business acumen is obviously not that fucking professional.

    But we’ll just gloss over his admissions and faults because the story is just so much better when we are blaming women for being shiny and tempting and shit. Even better if she actually stands up for herself…that won’t do. We simply MUST put her back in her place.

  5. Fraser-Kirk wanted the $37M as punitive damages for trespass to her person, according to the Statement of Claim. She had to link the punitive damages to a tort – you can’t get them for breach of contract or many other actions. The purpose of punitive damages is not primarily to compensate for injury (although you can argue that it does compensate in part for injury to Fraser-Kirk’s worth as a person), but to punish and deter repeat conduct (both by the specific defendants and other possible defendants in the future). Generally, we keep our punitive damages awards relatively small in this country (cf the US with its triple-damages regimes). I have never, ever heard of a $37M punitive damages claim succeeding here, and not in this kind of an action. Doesn’t mean you can’t try, but I’d probably have been a little more subtle, and put in a sum that was more likely to succeed.

    Because such a massive claim for punitive damages is unprecedented, my opinion would be that it would be highly likely to fail. Her lawyers must have known that, but I’d guess they were using it as a bargaining chip, and banking on the attendant negative publicity.

    It’s bad form to run a weak legal claim when you know that it’s likely to fail, but if you’re really using it for the purpose of forcing the other side to settle – it can be an abuse of the process of the court, because you’re not using the law as it is intended to work. If you allow start allowing people to make massive claims on bases that are not particularly meritorious, then the powerful can use the law to force less well-resourced people to settle when they ought not to settle (and that happens too much as it is).

  6. Agreed re gross unprofessionalism, Pirra. Really, McInnes doesn’t come out of this looking good. My impression is that he’s the kind of fellow who thinks that he’s God’s gift, and that he has a droit de seigneur with any new young female employee. Unfortunately, I’ve come across the type.

  7. im astonished at your own experience and the fact that these people still exist at work!!if they worked for me they’d be out on their ear!

    woe betide the employee that acts unprofessionally on my watch!

    as for the Fraser-Kirk case, $37m may be perceived as a lot to ask for, but when they broke it down as a percentage of his salary and DJ’s profits whilst employing a CEO that clearly crossed many professional boundaries, i didnt think it seemed too unreasonable. i didnt expect the court to award it, but i thought the justification was sound from a laypersons view.

  8. “copycat”… a term used in reference to (A) serial killers and their impostors and (B) snotty little cheats in the third grade. So the language of that article is either implying Fraser- Kirk’s own criminality, or painting her and her ilk as punitive little whiners (my bet is on the latter). quite revolting.

    off topic, kinda, but…

    I was quite horrendously sexually harassed in a previous job. My direct manager, who was also the CEO of the company I worked for, basically groomed me for several months, always including me in company dinners, arranging specialist training for me, providing ‘rewards’ (read gifts) for my good work. All this was paired with the odd comment about my appearance, or enquiry into my personal life.

    Now, I’d like to say I probably could have handled the situation better, been a little more assertive, drawn clearer boundaries. But in no way did I encourage this man or lead him to believe I wanted anything other than my job and his respect as my employer.

    None the less the whole affair degenerated into repulsive suggestive texts, vile innuendoes, and unwelcome offers of marriage/sex/whatever he could get. Gifts were forced upon me, and made me fear for my job less I reject them, and feel like a whore for accepting them. I was offered large ticket items if I was to engage in sexual activity. despite not taking up these offers, I lost the respect of female colleagues and myself.

    He found out I was in a relationship, and the whole thing exploded. I was reprimanded the next day for my ‘poor performance’, and he took much delight in criticising any and everything I did. I was constantly berate and my self esteem plummeted. I finally resigned after a weekend of abusive and fury ridden voicemails, and being yelled at for not booking a table in a restaurant.

    I never did report the abuse, as I did not care for being called a slut in court. I accepted presents, so in many peoples’ eyes I deserved it. But those presents were an abuse of power too.

    Oooh golly I feel better venting that. Where was I?

    • Lady Pants, I think that’s quite common. That’s similar in some respects to what happened to my sister. This guy basically took it out on her when she got a boyfriend and bullied her horrendously. The worst of it was that she felt that she deserved it too, and she didn’t tell me about it at the time. Once I found out I was ropeable, and ready to kill the guy with my bare hands. In fact, I saw him in the street once, and just looked at him. I don’t know what was in my face, but he literally ran down the street. Since I was about seven months pregnant at the time, it was particularly amusing.

      Anyway, I am very sorry that you suffered that, and I wish I could make the guy who did that to you run down the street in terror too.

      • Legal Eagle Pregnant Laser Hate Eyes of Doom! I’m pretty sure you fried his testicles with your withering glare.

        I kinda got my own back on my ex boss when he tried to pull a swifty on me with regards to my employee share plan … I got all indignant and quoted tax law at him in italics via email (and copied in the rest of his management team) Not mature or professional, I know. I just really enjoyed making him look like a petty dick/ rip-off merchant.

    • Lady pants, that’s horrid and it is not a far stretch to draw parallels in behaviour between harassing bosses and abusive partners….particularly making you feel like you deserved it, its all your fault, there is no alternative etc. Its abuse of power.

      Domestic violence abusers often (especially in the post-beating remorse stage) shower the victim with love, affection, gifts and praise. That is pretty much what your boss did. If someone treats you like a prostitute it is not hard to start thinking of yourself as one even though you did nothing to request or encourage it.

      I count myself very lucky indeed that I work in such a nice, empowered and abuse free environment and have never personally experienced harassment in the workplace.

  9. Pingback: Skepticlawyer » Abuse of process and damages claims

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