Sexual harassment circus raises thorny questions

KRISTY Fraser-Kirk's claim against David Jones is not all it seems to be on the surface.

LET'S get sceptical. Not cynical, just intellectually curious enough to probe underneath the surface of Kristy Fraser-Kirk's $37 million claim against David Jones and its former chief executive Mark McInnes. Not to defend the retailer or McInnes. We may never know exactly what happened in this she said-he said dispute. But one thing is certain. This case warrants plenty of legitimate questions, no matter how uncomfortable that may be to some.

Start with the media strategy of spin doctors. The first task of Fraser-Kirk's clever team at AMC Media was to launch a media trial, to raise the pressure on DJs and give the retailer a whiff of the damage to its brand if this matter was not settled quickly. Some call the media group's role "litigation support". In plain English, it's more like media manipulation. In which case: if the case against DJs and McInnes is so strong, why the need for a media campaign to launch Fraser-Kirk's $37m claim? Perhaps the answer lies in the fact some legal experts have suggested that in a courtroom Fraser-Kirk could expect to get anywhere from $0 to $50,000. Another expert went as high as $150,000.

When newspapers started asking questions as to whether Fraser-Kirk had made previous harassment complaints when she worked as a civilian with the NSW Police, her media managers ensured she appeared in front of the cameras again, this time lamenting the "smear" campaign against her.

But hang on. If Fraser-Kirk uses the media to claim McInnes is a serial harasser, surely the media is entitled to explore whether Fraser-Kirk is a serial complainant. And if Fraser-Kirk is allowed to claim in court that McInnes sexually harassed many other women, isn't McInnes entitled to know who these women are?

As Justice Geoffrey Flick said to Fraser-Kirk's lawyers last week, before they made allegations about other women being harassed by McInnes, the lawyers should have determined that the women were willing to give evidence. "Otherwise the allegation should not have been made." When Fraser-Kirk's lawyers sought to tender a document keeping the name of one of the women confidential, again the judge expressed his displeasure. He said Fraser-Kirk's team "has had its say" while McInnes was being denied the chance to have his.

Then, on Monday, Fraser-Kirk's team claimed in court that their client was suffering an "adjustment disorder" because of media attention causing "harm and intrusion" and that, to protect the other women suffering the same fate, their names should be subject to a strict confidentiality regime. "Adjustment disorder"? According to Wikipedia, "Adjustment disorder has been classified as being so 'vague and all-encompassing . . . as to be useless', but it has been retained [in psychiatric manuals] because of the belief that it serves a useful clinical purpose for clinicians seeking a temporary, mild, non-stigmatising label, particularly for patients who need a diagnosis for insurance coverage of therapy."

Another question: Isn't it a bit rich for Fraser-Kirk to complain about the media given that Fraser-Kirk and her team kicked off the $37m claim in a blaze of publicity before assembled media?

Indeed, a curious and sceptical observer could ask a series of legitimate questions about the Fraser-Kirk claim. According to newspaper reports, Fraser-Kirk's lawyers started out asking DJs for an $8m settlement and ended up demanding $850,000. When DJs declined, Harmers Workplace Lawyers filed a $37m punitive damages claim in court. When DJs then agreed to $850,000, why did Harmers push ahead with the headline-splashing claim, unprecedented in terms of the size and punitive nature of the claim? Fraser-Kirk may regret knocking back the $850,000 offer.

The case comes on the heels of a very public split within Michael Harmer's high-profile legal firm in which his managing partner Joydeep Hor departed, reportedly taking with him 125 clients. The Fraser-Kirk publicity was a neat reminder that Harmers was still in business. The home page of the media-savvy firm provides a one-click link to the Fraser-Kirk case with a collection of news stories favourable to Fraser-Kirk, a hotline number and online form for others to pass on information about "inappropriate behaviour at David Jones" to the law firm.

Nothing wrong with that. But it's a reminder that there's more to these cases than meets the eye.

Back in court last week, DJs claimed the young publicist was seen flirting with the chief executive and walked away with a smile after he hugged her. Whereas Fraser-Kirk claims she was "required" to attend a function for La Prairie skincare products, where she claims McInnes propositioned her, DJs claims she told her supervisor she would "love to go" to the function. Is it the case that when a woman comes on to a man in the workplace, she's taking the initiative and flattering him, but when a man comes on to a woman in the same circumstances he's harassing her?

For his part, McInnes resigned from DJs, admitting he had behaved "in a manner unbecoming" and committed "serious errors of judgment". But he denies Fraser-Kirk's allegations that he propositioned her for sex. He also denies the "unsourced and unsubstantiated" allegations from the Fraser-Kirk legal team that he sexually harassed other unnamed women in the past.

If this case stays in the courtroom, and even if it doesn't, it's worth asking other questions, too. Such as: What is Fraser-Kirk's loss? When her lawyers demanded DJs take "appropriate action", the retailer acted immediately, announcing a "mutual termination" of McInnes's contract. When Fraser-Kirk fronted the cameras to explain her $37m claim, she said she had been "forced to walk away from her career". In fact, the young woman who worked at DJs for barely two years is still employed by the retailer. Even if her allegations are true, aren't we entitled to ask whether they are so egregious as to warrant a $37m claim?

Certainly, this case has people talking about sexual harassment and that is good. Some women wrongly suffer appalling sexual harassment in the workplace. But ambit claims don't help women and don't encourage companies to do the right thing. After all, DJs dispatched its chief executive and negotiated in good faith with Fraser-Kirk's lawyers. If companies are going to be dragged into the courts even after they do the right thing, they may just do the wrong thing by women in future.