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What women don't want

Former David Jones CEO Mark McInnesIt is no new thing that men with power very readily assume that the ordinary rules of conduct do not apply to them. Such seems to have been the belief of the recently departed CEO of David Jones, whose career has been devoted, he said in a recent Age interview, to knowing what women want.

Sometimes the power is slight — like Troy Buswell's, who led the WA Liberal Party in opposition, but had to stand down in tears after sniffing a staffer's chair in his Parliament office. Sometimes, too, the lessons are not learnt. Buswell had to give up his political power a couple of years later when his affair with a Greens MP became public.

One was sexualised bullying, the other a consensual dalliance. One was a misuse of power over his employees, the other a breach of his wife's trust and of a political leader's sense of what the public will no longer wear. Still, there are similarities: in both instances, the women involved copped one hell of a belting from the media.

Let us, then, feel for the young woman who blew the whistle on Mark McInnes (pictured) to the David Jones Board.

Sexual harassment has always been hard to talk about. The first reported decision on harassment was on a young woman's complaint that the head of her department had made constant sexual advances. He denied it, and she fought a court case over it. In the end it was decided on a technicality, which brought her no joy, even if it did lead to a change in the law to distinguish between sex discrimination (which required proof of detrimental treatment based on sex) and harassment by sexual conduct (which should be accepted as detrimental per se).

About ten years ago I lost my firm a very big client. The CEO of a very well-known business asked me for advice on how to respond to a complaint against him by one of his staff. He told me she'd complained that he had fondled and kissed her in a hotel lift on the way to a meeting. He showed every sign of outrage about it: she was mad, how could anyone believe such a thing? She had made an immediate complaint to a third party, a female friend, and had taken sick leave.

I told him the facts could easily be disproved: we could call for the security camera film. I made the call, and learned that the security cameras did not operate — they were just for show, and there was no film. I told my client and his face lit up. Well actually, he said, he had done it, but it was just a moment of madness, and would I please draft a response denying such an incident had ever occurred, because he could not possibly admit such behaviour to his board.

I said I could not possibly draft a statement for him that contradicted his explicit admission to me, especially since her complaint had been made to the Equal Opportunity Commission. His face darkened. What would I recommend? Consult another solicitor, I told him. He stormed out in fury. We lost all the company's business.

The law has a long history of disbelieving women who make claims of sexual behaviour against men. Over the years it has changed, so that a woman who seeks maintenance for an ex nuptial child no longer has to provide corroboration of her evidence in a material particular, or to satisfy the so-called 'Briginshaw' test. This requires a heavier evidential burden than mere vague and ambivalent facts to tip the 'balance of probabilities'.

In recent years tribunals hearing sexual harassment claims have adopted the Briginshaw test, because of the seriousness of the consequences of the allegations for those they are made against. But anti-discrimination tribunals have come to accept, perhaps because so many more women are now members of such panels, that sexual bullying at work is almost invariably conducted in private and that 'corroboration' is not easy to find.

The woman who made the complaint against McInnes and David Jones has been named by the weekend papers, and is in full retreat from the media. She is said to be most distressed. Of course. What it must have already cost her to raise the matter at all! No wonder she went to lawyers.

The most common outcome of a sexual harassment complaint is, these days, that the harasser leaves (often by consent, and paid his contractual entitlements), and that the the woman is resented as a gold-digger. Most complainants leave their jobs. Most hardly ever get what they need — support, involvement in any action taken against the harasser, and the dignity of acknowledgement.

David Jones acted promptly with its commercial interests in mind, having regard to its responsibilities under equal opportunity laws. But most women pay in blood for making sexual harassment complaints against powerful men in high places, under intense media, personal and professional pressure. There are massive disincentives to making these complaints. There is good reason for the Sex Discrimination Act to protect the women from being publicly lynched. But the media interest is such that they will always sniff them out.

Let us not forget that all great power is misused, eventually, and that a turning organisational wheel always crushes the whistleblower. No wonder so many women just leave.

Moira RaynerMoira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.

Topic tags: Moira Rayner, David Jones, Mark McInnes, Troy Buswell



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Existing comments

Thank you for this article Moira. I feel very distressed about the lack of support and solidarity for the complainant in this case, and so many others. I was introduced to this delightful aspect of Australian workplace culture as a 16 year old on work experience in the 80s and have faced it several times since then. In each case staying silent was the only safe option. And leaving as soon as possible. It's not right.

Allison | 21 June 2010  

We must teach our children and grandchildren - male and female - to be aware of sexual harassment, avoid it where possible, complain about it if they have the strength to withstand the opprobrium and never to feel guilty about the misbehaviour of perpetrators. It's a big call and we have a long way to go. My sympathy goes to the David Jones whistleblower. My rage after a long career in harassing workplaces remains a stone in my gut.

Liz | 21 June 2010  

Thank you again Moira for being a sound voice for women.

Marlene | 22 June 2010  

Congratulations to the complainant for her courage. Every exposure is a step forward for women and almost certainly a huge wake-up call for the men...[and of course vice versa]

Patricia Taylor | 22 June 2010  

Great article. Strong enough to not need the rhetorical use of 'blood' as we know women do literally pay in blood in domestic violence circumstances. I dont want to take attention away from this particular topic with a me-too slant, but just want to register the fact that there is a slightly different situation for (gay) men where harassment can be mixed in with - or expressed as homophobia .. also a difficult thing to report.

Michael | 22 June 2010  

Thank you Moira - well argued. (and bravely brilliant that you refused to represent the harasser) My only concern is that in a decade's time you will be saying almost the same things as in this article - the language and the legal tests may change but I fear the attitudes and power bases are immovable.

Di | 22 June 2010  

Dare I say it? Some women make it difficult for the woman who objects to sexual overtures from her boss. "Go along with it. Feed his ego." they say. "Don't worry. He won't go all the way. And it won't do your career any harm."
They will then go on to tell the innocent protester how Betty got promoted out of the typing pool or Frankie got an overseas posting by stroking the sexual ego of a randy manager.

What some women don't want is their weapon of sexual allure being taken from them by self-respecting women who object to men sexually harrassing them.

Not all women in the office/workplace have the same attitude to amorous advances from their bosses, be they male or female. Yes lesbian bosses can harrass too.

Uncle Pat | 22 June 2010  

A great article Moira. Thank you. If only mainstream media could be congnisant of the pain and stress that the whistle-blower experiences. If anyone believes that a complainant would do this for financial gain, does not understand the scrutiny and vilification they are subject to. It would have taken courage to make this complaint.

Anna | 22 June 2010  

Your first sentence says it all. Thanks again Moira Rayner

GAJ | 22 June 2010  

Thanks Moira, like Alison I also experienced sexual harassment from undisciplined male managers and coworkers throughout my early work life. In fact this awful stuff continued until I left the workforce completely (at age 30) and went into business with my partner. I had forgotten about these incidents since they never happen now that I'm in business for myself - and the David Jones story brought it all back to me. Good on the complainant - you are a very brave young woman, and I hope you can surround yourself with those who wish you well and acknowledge your courage at this challenging time. And whatever you do, don't question your judgement here - you have totally done the right thing.

Fiona | 22 June 2010  

Moira, I see two issues in your article which leap out of the page at me: one concerns the response to the victim. It seems that their plight is way beyond men's ability to understand. As you pointed out - what they need is support, involvement in any action taken against the perpetrator, and the dignity of recognition.

The other issue is the role of media: years ago we had the Broadcasting Control Board to regulate what could and what could not be said in media broadcasts. It seems there is nothing to regulate media, no legal or ethical body to protect innocent citizens from being sensationalized.

Trish Martin | 22 June 2010  

To add yet more complexity to the `sexual politics` of the workplace: there are, you know, aggressive ambitious women who target older powerful men for career advantage and who destroy marriages and families in the process. This does not in any way excuse sexually predatory alpha males, but nor is the situation completely monochrome.

eugene | 22 June 2010  

Great article. Strong enough to not need the rhetorical use of 'blood' as we know women do literally pay in blood in domestic violence circumstances.

I don't want to take attention away from this particular topic with a me-too slant, but just want to register the fact that there is a slightly different situation for (gay) men where harassment can be mixed in with - or expressed as homophobia .. also a difficult thing to report.

Michael | 22 June 2010  

Great article Moira ! Thank you.

Anna | 22 June 2010  

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