Sexual Harassment at the Workplace - Case Study Example

CONFLICT MAP ASSIGNEMENT: Workplace Conflict: David Jones-Sexual Harassment Case STUDENT NAME PROFESSOR’S NAME COURSE TITLE DATE TABLE OF CONTENTS Introduction 3 1.)Conflict Parties 4 A.Parties 4 B.Relationship 7 C.Power/ Resources 7 2.)Conflict History 8 3.)Conflict Context 10 4.)Party Orientation 11 5.) Conflict Dynamics 12 6.)Conflict Intervention 12 A.) Types of Appropriate Intervention 12 B. Recommendations 13 Conclusion 15 REFERENCES 16 Introduction Sexual harassment in the workplace affects both genders, male and female employees in the workplace. In a global perspective, sexual harassment can be considered as a form of “sex discrimination, unwelcome sexual advances, requests for sexual favours, a conduct of a sexual nature which may be considered as offensive, intimidating and humiliates a person” (CEDAW, 1992). The level of sexual harassment in Australia is at its highest and that is not only a one-off incident but generally impacts negatively on the motivation of employees, the emotional well-being of those working in that organization. Sexual harassment conflicts affect more women than men have been subjected to one or more form of sexual harassment than men (Lahey, 2010). The paper is to discuss sexual harassment and specifically the case involving David Jones (DJ) Company. The sexual harassment involves DJ Publicists Kristy Fraser-Kirk and only came to an end when the parties reached a settlement out of court (Jamelle, 2011). The paper explores the nature of the conflict existing in the case, the parties involved, and the resolution of the conflict, its history and the relationship existing amongst the different parties. Sexual harassment is against the law if takes places with the workplace environment and it can be at any time when applying for or during the duration of the employment. According to Horin (2012) she claims that in making a harassment claim, it is the most painfully and onerous process and in many instances, one need not be motivated by monetary awards (Horin, 2012). The complaints involving sexual harassment according the Australian Human Rights Commission, it shows that in the 284 complaints of sexual harassment, at least 266 of the complaints were settled but most of the settlements were not based on monetary compensations (Horin, 2012). The society tends to think that sexual harassment is considered as a relational problem between one person and anther in the workplace. According to the Sex Discrimination Act 1984 (Cth), it defines sexual harassment as occurring when: a) A person specifically harasses another person by making unwelcomed sexual advances or an unwelcomed request for sexual favours to the person being harassed, or engages in an unwelcomed conduct that would be considered of a sexual nature in regards to the person being harassed. b) The conduct that is deemed to be of a sexual nature includes the statements made to the person must be of a sexual nature, in the presence of that person and it can be made orally or in writing. In the determination of whether there person is being harassed then the law, specifically requires that one must take into account the marital status, the age , sex, the sexual or gender preference, race, religious beliefs, colour , disability and the relevance of the circumstance (Powell, 20111). The mere fact that sexual harassment has been legislated upon and defined in Australian law implies that it is a serious issue in the workplace (Benavides-Espinoza & Cunningham, 2010). 1.) Conflict Parties A. Parties A primary party in a conflict refers to “those who are involved directly in the conflict, having a direct interest in the outcomes of that particular conflict” (Burgess, 2004). The primary parties to this particular conflict in David Jones case are: Ms. Kristy Fraser-Kirk, Mr. McInnes the Chief Executive (CEO), David Jones Ms. Kristy Fraser-Kirk filed a complaint for sexual harassment against David Jones the Company, the CEO suing for $35 million for sexual harassment. Miss Kristy a former publicist of David Jones (DJ) demanded that Mr. McInnes pay her at least $34.4 million pay and the benefits that had accrued in that period. Ms Fraser-Kirk alleges that Mr McInnes made “unwelcome sexual advances” towards her on two occasions. Ms. Fraser Kirk enjoins Mr McInnes personally as a respondent despite the fact that in many instances, the claim targets the employer that is DJ (Easteal, Saunders, Judd & Bruce, 2011). The other primary party is David-Jones the retail giant company, being sued by the 27 year old Ms Kristy Fraser-Kirk for allegations of sexual harassment. In seeking to enjoin the company as part of the proceedings, Ms Kristy claims that the CEO, Mark Innes had repeatedly made advances a sexual nature. David Jones as part of the primary parties in the suit is also mitigated by the fact that DJ is the employer of Ms Fraser-Kirk (COTWA, 2012). Mr. Mark McInnes the CEO of DJ as from 2003 to 2014 and stood down after he openly admitted that he had behaved in a manner that is unbecoming of the high standards that is expected of a CEO. It is implied that in many instances, a company needs to create policies against sexual harassment and what actions are necessary in terms of confronting sexual harassment issues arising in the workplace. The directors of the company act on behalf of the company, an agent position. Mr. Mark McInnes use of his position in the company to initiate sexual advances against an employee is misconduct in regards to his duties as the company’s CEO. Robert Savage a board member of DJ and Paul Zahra were listed by Ms Kristy Fraser-Kirk as being amongst the main defendants in the sexual harassment suit. A Secondary Party to a conflict is one that has an indirect interest or stake in the outcomes or consequences arising from a dispute but is not directly involved in the conflict (Bright, n.d). The secondary parties include the people of Australia, who anticipate the ruling of the case if it goes for a full trial. The public of Australia is likely to be interested in the outcome of the case, since it would serve as a precedent in deciding other sexual harassment cases. According to Lahey (2010), the case involving David Jones would act as a watershed for sexual harassment in Australia. An interested party in the conflict are those that “have a strong interest in the conflict and the opinion regarding how the matter needs to be resolved” (Bright, n.d., p.3). The media is an interested party in the case. The voracious nature of the Australian media in dealing with the issue made it a topic of discussion. It was expected, that most people would have criticized the actions taken by Fraser-Kirk, demonized and actually remorselessly criticized but the media turned Ms Fraser from the victim to the villain especially after the huge settlement (McIlwraith, 2010). According to Richard Ackland, he states that the role of media in instances of conflict act both as the jury and the judge (Ackland, 2009). In regards to media reports on DJs case, the media covered the situation just like it does in high profile cases with unfavourable media coverage on the issues. The interest of the media is to disseminate information to the public, increase ratings of their networks, generate debates and other ideologies to the public (Easteal et al., 2012). An intervening party to a conflict is one that does not have any direct or direct interest in the conflict, but may have a say on the outcome of the matter. The court prior to the settlement of the case was an independent party in terms of adjudicating and determining the sexual harassment case. In the court documents, Ms Fraser-Kirk asked the court to compensate her $37 million, damages for breach of contract, punitive damages and the costs of the suit. The statement of claim, detailed how the alleged emails, text messages were to be considered as forms of sexual harassment (Emily, 2010). B. Relationship The relationship amongst the parties is symmetrical in nature. The nature of the relationship is that of an employer-employee relationship and has gone sour due to the sexual harassment complaint. The relationship between the parties is strained due to inappropriate sexual advances towards Ms Fraser-Kirk in the workplace. In the years 2003 until 2010, Mr. McInnes was the CEO of DJ while Ms Fraser was retained by DJ as the publicist. The relationship subsequently became strained because DJ failed to act according to its policies even after Ms Fraser-Kirk had made complainants of sexual harassment. The facts that strained the relationship were failure of management to act on the complaints; Mr McInnes sent text messages asking for sex, the senior managers witnessed the behaviour and failed to act to protect Ms Fraser Kirk. C. Power/ Resources In consideration of the parties to the conflict in terms of resources, then the company DJ wield more resources than Ms Kirk Fraser. In terms of resources, Ms Fraser-Kirk has to ensure that she bears her legal costs and any other costs arising from the dispute. Ms Fraser-Kirk settlement or claim will more likely benefit her legal counsels in terms of legal fees as opposed to DJ that engaged the services of its in-house lawyers. In consideration of Mr. McInnes the former CEO, his resources are sufficient to cater for the costs of the suit or any settlement reached by the parties. The parties in the conflict that is Ms Fraser Kirk and DJ and Mr. McInnes, were all engaging in the power struggle of maintaining their reputation. Ms Fraser Kirk fighting on one hand to ensure that she regains her reputation, while DJ attempts to recover the damage the scandal caused to their brand image and the company. DJ and Mr McInnes have a controlling edge in regards to power and resources. 2.) Conflict History The parties to the conflict can be defined as having an employer-employee relationship. DJ had retained the services of Ms Kristy Fraser Kirk as the company’s publicity, and she worked under Mr. Mark McInnes as the CEO. In regards to the nature of conflict at play, it is reasonable to assert that the conflict relates to providing a safe system of work within the workplace, that is sexual harassment is an undesirable factor in the work environment. The sexual harassment case relates to two instances where sexual advances and suggestive language was used towards Ms Kristy. The sexual harassment claims relates to two occasions. In the first instance, Ms Fraser-Kirk alleges that “next times that happens; you just need to be very clear and say no Mark and he’ll back off”. The second occasion occurred when they attended David Jones renewal contract with racing trainer at Gai Waterhouse stating that “McInnes urged Fraser Kirk to try a dessert by saying the dessert was like a f—k in the mouth”. At this moment Mr. McInnes placed his hand under her clothing to a point where he touched the strap of her bra. At the same time Mr. McInnes had assed Ms Kirk to accompany him to his home where there was a clear implication that such a visit would be for the purpose sexual intercourse. In her claim, Ms Kirk alleges that the form of sexual harassment she experienced was devastating to her. The cause of action as per Ms Kristy Fraser-statement of claim was based on the law of tort, contract, trade practices and equity. Ms. Kristy claimed that when she was employed by DJ, there were certain statements that were made that are “the environment within DJ was very fun and exciting to work in” (Easteal et al., 2011). These statements amounted to misrepresentations. In regards to the way in which the claim was filed, it meant that the claim was to go directly to the Federal Court of Australia (‘FCA’) and that the parties would not be open to conciliation in order to resolve the dispute. This would have totally left out the Australian Human Rights Commission (AHRC) recommendations that parties need to exhaust all formal processes of dispute resolution before initiating a court process (Easteal, et al., 2011). However, the dispute came to an end after conciliation in the AHRC and a settlement was reached by the parties to the dispute. Ms Kristy Fraser-Kirk settled for $850,000 as opposed to her earlier claim of $37 million. The significance of the case was its potential of setting a threshold in Australia regarding sexual harassment cases. It is important to consider the impact of the case had it gone for a full trial to ascertain whether the courts would have been open to the possibility of awarding punitive damages which has not been considered in sexual harassment cases in Australia. Moreover, one important aspect of the settlement was its sheer size that is the amount awarded was rare in regards to similar cases of sexual harassment within the workplace. 3.) Conflict Context In regards to the nature of the sexual harassment as conflict, then it is important to analyse the different levels of the conflict. Individual level At an individual level, the conflict mainly relates to Ms Kristy Fraser-Kirk and Mr. McInnes. These are the two important parties in the conflict since one is the perpetrator (McInnes) and the victim (Fraser-Kirk). The conflict at an individual level had escalated to a point that can be termed as emotional abuse. In regards to the situation between McInnes and Fraser-Kirk, the conflict moved from one incidence of harassment to another. The interests of the two individuals are contradicting in regards to their workplace relationship Workplace level The workplace refers to the environment in which Mr. McInnes and Ms Fraser work in. Sexual harassment constitutes misconduct, and if it occurs within the working environment, then the person being harassed is entitle to sue for damages and any other right. In this context, the management of DJ and other employees within DJ are affected by sexual harassment. For instance other employees within the workplace might claim having been harassed, others may opt to disown the claim and the company is drawn in as a party to the conflict for failing to provide a safe working environment for its employees. Social context The social environment entails the entire public population of Australia. This means the media, the citizen and the courts. The society is likely to draw its own conclusion and opinion regarding sexual harassment claims, and due to the conflicting views it might ostracise or praise an individual Ms Fraser for her attempt to protect others from similar conduct or behaviour. The societal context is shaped by views from media, activists such as AHRC and the legislation of what is the ideal standard of instituting sexual harassment proceedings. 4.) Party Orientation Relationship Conflict The conflict in this case arises out of the relationship existing between DJ and Ms Fraser Kirk. This workplace relationship is in regards to the employer-employee relationship during the duration of the employment. The fact that Mr. McInnes the CEO and Ms Fraser-Kirk worked within the same workplace environment and that the CEO crossed the boundaries of what defines employee relationships, then the conflict arose out of the breach of the employee-employer relationship, or workplace. Interest Conflict The interest of the parties involved in the conflict is to come to a mutual agreement in resolving the sexual harassment allegations. The interest of Ms Fraser-Kirk is to ensure that her case acts as a precedent in enabling other workers being harassed to openly seek redress from the courts or other avenues. Ms Fraser-Kirk is motivated by her need to secure damages to compensate her for psychological and other emotional impact of the harassment ordeal. The interest of DJ and Mr. McInnes is to see the conflict come to an end either through an out of court settlement or any other conflict resolution mechanism such as dialogue, apology, negotiation or dispute settlement. 5.) Conflict Dynamics A sexual harassment claim presents a personal dilemma. If a party chooses to remain silent about being sexually harassed, then the possibility of a conflict arising is nil. However, in regards to Ms Kristy disclosure of having been sexually harassed presents the courageous nature of disclosing personal conflicts. In many instances, individuals faced with internal personal conflicts decide to suffer in silence; however a sexual harassment conflict is a personal conflict and turns only when there is disclosure. 6.) Conflict Intervention A.) Types of Appropriate Intervention Out of Court Settlement An out of court settlement as a means of resolving a dispute means that the conflicting parties come to an agreement on ending the conflict without involving an outside party. Intervention through an out of court settlement saw Ms Kristy settling for $850, 000 despite the fact that most financial settlements regarding sexual harassment cases fell below $7000. Complainants of sexual harassment have been rewarded for much less limited to their redundancy, legal entitlements and leave payouts as considerations in awarding financial reward (Horin, 2012). The admissions by Mr. McInnes, and the conflicting statements by DJs clearly showed that both Mr. McInnes and DJ were liable to Ms Fraser for being sexually harassed. Mediation In the resolution of the crisis parties to the conflict need to define and re-establish their boundaries through clarification of jurisdiction, and authority. The diagnosis of the nature of the problem regarding DJs case is violation of the employee-employer boundaries within the workplace. DJ needs to define the boundaries between its employees and management to avoid conflict arising out of going beyond the boundaries. Mediation as a form of intervention offers the parties an opportunity to air out their grievances in the presence of a third party, make concessions and agree on the appropriate way of ending the dispute (Moore, 2003). B. Recommendations DJ needs to ensure that the workplace establishes a respectful behavior that is having a reasonable boundary around respectful behavior. DJ needs to adopt a sexual harassment policy and ensure that the staff is trained on the policy and the intervention protocol. The appropriate recommendations regarding sexual harassment cases is first focusing on the intervention by bystanders in regards to sexual harassment. The company and its employees should ensure that they have meetings and create policies that restrict sexual harassment within the workplace an appropriate procedure for reporting sexual harassment incidences (McDonald & Flood, 2012). This is to ensure that there is an active response to any sexual harassment concerns in the workplace ensures that the integrity of the company and the individuals is uncompromised and the reputation of an organization is kept intact. In intervening on issues relating to sexual harassment as a conflict issue within the workplace, then one needs to consider aspects of intervention. First there needs to be issues of primary intervention that is when the problem of sexual harassment actually occurs. One problem with Kristy’s case was her failure to report to DJ about the sexual advances when it occurred. Moreover, it is an issue to consider on whether it was appropriate to enjoin DJ’s board on whether they were aware of the sexual harassment. The other mode of intervention would be the secondary intervention; this is once the sexual harassment problem occurs within the organization or workplace. Lastly, intervention may extend on a longer-term after the sexual harassment has occurred and passes. For instance, DJ needs to look at how the company will handle future claims of sexual harassment, how to deal with the conflict and addressing issues of harassment within its corporate structure. Having a workplace policy on sexual harassment is an important factor in dealing with highly emotive and explosive issue of sexual harassment. A policy mainly contains the guidelines for which an organization or the employees/employers need to follow in case of complainants of sexual harassment. Sexual harassment in its nature refers to a conflict between to employees within the workplace, and there is need to contain the situation before it turns violent, ruins the morale of employees. A policy addressing sexual harassment within the workplace is important in ensuring that the employees are safe and that they are confident that they are protected within the workplace. Conclusion The nature of sexual harassment complainants within the workplace requires a particular form of intervention. In regards to Kristy Fraser-Kirk Case against DJ and its CEO and the directors, it shows the need to legislate and protect employees from discriminative practices as well as from exploitative behaviour in regards to sexual violence. It is arguable to state that it is difficult to place monetary quantifications to the amount of devastating experience a person has in regards to sexual harassment, and the negative impacts it has in regards to the reputation of an individual, the perpetrator and the organization. It is not clear from the case of Kristy Fraser-Kirk on whom to apportion blame, but in that situation, she pursued a vicarious liability approach in regardless to the sexual advances. In finding an appropriate way of dealing with sexual harassment cases, then the employer should ensure that there is a good workplace policy that protects employees from sexual harassment and that there are appropriate ways in which the employer can intervene in regards to sexual harassment cases. In consideration of the lessons learnt from Kristy-Frasers case that the media, litigation process and the cost of sexual harassment play a determinative factor in solving sexual harassment cases. One would claim that Fraser-Kirk’s case is a set-back for Australia; however it is an eye-opener for other employees facing constant harassment from the workplace. REFERENCES Ackland, R. (2009). Sometimes the media have to be the Judge and Jury. Sydney Morning Herald. Basu, Kaushik 2003 The Economics and Law of Sexual Harassment in the Workplace’ Journal of Economic Perspectives 17 (3): 141-157 Benavides-Espinoza & Cunningham, G (2010). ‘Bystanders’ reactions to sexual harassment Sex Roles: A Journal of Research, 201-213 Bourke, E. (2010). David Jones facing $37 million sexual harassment case. ABC NEWS. http://www.abc.net.au/pm/content/2010/s2971306.htm Bright, L. S. (n.d.). TheConflictMappingChart. From http://www.cmsupport.org/ConflictMapping/ConflictMappingChart_ShayBright.pdf Burgess, H. (2004, January). Parties to Intractable Conflict. Retrieved March 19, 2012 from http://www.beyondintractability.org/node/2496 Committee on the Elimination of all forms of Discrimination Against Women, General Recommendations 19 (1992), para 18 http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm Community of the Wrongly Accused (COTWA) (2012). Extreme sexual harassment case was like a war, judge finds that the accuser lied. COTWA http://www.cotwa.info/2012/04/extreme-sexual-harassment-case-was-like_02.html, Easteal, P., Saunders, S., Judd, K. & Arnold, B. (2011). Sexual Harassment on trial: the DJs Case. Alternative Law Journal, 36 (4), pp. 230-235 Horin, Adele, (April 2012) Payouts in sexual harassment settlements hardly worth the trouble. Bribane Timeshttp://www.brisbanetimes.com.au/national/payouts-in-sexual-harassment-settlements-hardly-worth-the-trouble-20120415-1x1q2.html Jamelle, Wells (May 2010) DJs harassment case settled for $850k ABC News http://www.abc.net.au/news/2010-10-18/djs-harassment-case-settled-for-850k/2301220 Lahey, K. (2010). ‘No’ gets no firmer than a $37 million lawsuit. The Sydney Morning Herald. http://www.smh.com.au/business/no-gets-no-firmer-than-a-37-million-lawsuit-20100803-115el.html McDonald & M. G. Flood 2012 Encourage Support. Act! Bystander Approaches to Sexual Harassment in the Workplace. Human Rights Commission Australia. Mcllwraith, I. (2010) How Fraser went from victim to villain. The Age. http://www.theage.com.au/business/how-fraserkirk-went-from-victim-to-villain-20101020-16u9z.html Moore, C. (2003), The Mediation Process: Practical Strategies to Resolving Conflict, San Francisco, Jossey-Bass Powell, A. (2011) Review of bystander approaches in support of preventing violence against women. Victorian Health Promotion Foundation (2011), p. 8-10 Read More