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Sexual Harassment – are we shooting the messenger?

Dr Gabrielle McMullin has faced fierce criticism for recent comments that females seeking a careers as surgeons should not speak out against sexual harassment.  Her message was that while vicitms of this type of harassment may have a valid legal claim, making a complaint is likely to destroy their careers.   Some commentators described her comments as “a kick in the guts to workplace gender equality.”  While I completely agree that the content of her message was clearly troubling, is her decision to speak in realistic and truthful terms about this issue deserve such condemnation?  Or are we simply shooting the messenger?

Purists may argue that Dr McMullin’s suggestions impliedly condone the  ‘casting couch’culture within the medical professional, and that female trainee surgeons following her advice to stay quiet are each individually responsible for pushing the problem even  further from a solution.  Many would even argue that each woman’s acquiescence  with harassment is as morally reprehensible than the impugned conduct itself.  This may be the case, but I tend to disagree.  If the surgical career of a female genuinely faces ruin from standing up to sexual harassment then we should be talking about it, not brushing it under the table.  And women in this situation are not individually responsible for the gender equality fight, at the expense of their own professional success.  At the very least, a senior female industry practitioner should be entitled to be realistic and honest about the choices of young professionals in her industry.  With so many gender equality issues at work, as I mentioned on this previous post, discussion of the issues in purely abstract terms can only be effective as a starting point.  There is an inherent conflict between broad notions of right and wrong in social terms, and the individuals choices within the context of their own lives or careers.  Denying the existence of this conflict does not make it go away.

Employees are protected to a certain extent against sexual discrimination in the workplace, both by the Sex Discrimination and Fair Work Acts.   Historically, the damages awarded have been far less than sufficient, but there have been positive signs that this is also changing.

The problem in this scenario lies with the employees having only very  faint legal protection against adverse action AFTER making a complaint.  The General Protections in the Fair Work Act are good laws in principle,  providing that it is unlawful to take adverse action against an employee or prospective employee for exercising, or proposing to exercise, a workplace right.   Dr McMullin’s example of ‘Caroline’, a doctor who’s career was ruined when she made a complaint of sexual harassment, should have been protected by this provision.  Those various individuals in the surgical profession that were blocking her career progress because of her earlier complaints were clearly in breach.    The problem is that  the provisions are too easy to circumvent.  At present, employers breaching the General Protections are generally only caught because they didn’t know about the provisions before taking the adverse action.   But a sophisticated employers  (who are well advised legally), find it too easy  to protect themselves from allegations of adverse action, by setting up or fabricating legitimate reasons for their  actions in advance.   These provisions are where we should be putting our attention.

In the meantime, we should hold off on moral judgements of other people facing tough circumstances.   We shouldn’t be critical of those choosing to keep quiet to limit damage of their careers, especially when evidence is so strong that this damage is likely.   And senior female practitioners, such as Dr McMullin, should be entitled to speak freely about the realities of their profession, without bearing responsibility for the core issues at fault.

 

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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