Joanna L. Grossman

Are There Lessons About Sexual Harassment in the David Letterman Scandal?

By JOANNA L. GROSSMAN


Tuesday, October 20, 2009

David Letterman rocked the late-night television scene on October 1, with a long and winding on-air confession about a series of intra-office affairs. He revealed little in the way of detail, except to acknowledge that he has "had sex with women who work for me on this show," behavior he described as "creepy." He followed up a few nights later with an apology to his wife, whom he admitted to having "hurt terribly."

The confession was prompted by the indictment and arrest of Robert Joel Halderman, an Emmy-winning CBS producer, for allegedly blackmailing and extorting Letterman. More specifically, prosecutors say that Halderman asked for two million dollars in exchange for his promise not to sell a screenplay based on Letterman's escapades. Media coverage of the scandal turned quickly from Halderman's conduct to Letterman's. In particular, many asked, Did Letterman do anything wrong – and, in particular, anything illegal -- by having sex with women in his office?

The term "sexual harassment" has been tossed around in the media during the course of the controversy, including by Halderman's lawyer, who claims to have evidence of it. But, legally speaking, did Letterman's conduct – based on what we know about it thus far -- constitute unlawful sexual harassment?

In this column, I will lay out the basics of sexual harassment law, and then consider how these principles might or might not apply to the Letterman situation.

The Basic Definition of Harassment: Quid Pro Quo or Hostile Work Environment

To begin, it's important to know the basics of how sexual harassment law arose, and the two types of harassment the law recognizes as violating rights.

Title VII, a federal law governing employment discrimination, prohibits discrimination on the basis of sex — which the Supreme Court has defined to include harassment that is serious enough to affect the terms or conditions of employment. Sexual harassment takes one of two forms: quid pro quo, or hostile environment. (Sexual harassment is also prohibited by state fair employment laws, but they often mirror Title VII in scope.)

Quid pro quo harassment occurs when a person with supervisory authority takes a tangible employment action (such as demotion or firing) against a subordinate employee who refuses to submit to sexual advances. "Sleep with me or you're fired," is the classic example here.

Hostile work environment harassment occurs when an employee is subjected to unwelcome conduct of a sexual nature that is so severe or so pervasive as to create an objectively hostile, abusive, or offensive working environment. An example with which readers might be familiar occurs in the movie "North Country" (which is based on a true story) in which female miners face a range of types of abuse from male co-workers and supervisors at the mine.

Readers may ask, "Hostile from whose perspective?" The answer is that sexual harassment law has long been interpreted to require that an environment be both objectively -- to a reasonable person -- and subjectively -- to the plaintiff, specifically – hostile if the plaintiff is to prevail in her suit.

To prevail in a hostile environment sexual harassment case, an employee must also prove that the harassment was undertaken because of his or her sex – a requirement that has led to complex precedents defining when harassment is, and is not, "because of sex."

Employer Liability for Harassment

Perhaps even more important than the definition of harassment is the question of employer liability: Is there someone who can be held accountable for the harassment that is alleged to have occurred?

Two important Supreme Court decisions clarified the rules on employer liability for workplace harassment. For quid pro quo harassment, employers are strictly liable – that is, liable irrespective of fault. In other words, if the harassment occurred and met the legal definition, then the employer is on the hook for a remedy.

Employers are also automatically liable for hostile environment harassment by a "supervisor" — someone with authority to hire, fire, or otherwise tangibly affect the working conditions of the harassed employee. But here, employers can avail themselves of an affirmative defense if they have taken reasonable care to prevent and correct harassment, and the victim has unreasonably failed to complain or otherwise to avoid harm caused by the harassment.

However, if hostile environment harassment occurs at the hands of the owner, president, or alter ego of a company that is an employer, then strict liability – that is, liability with no affirmative defense that can be proven and thus allow the employer to escape liability – attaches, regardless of the nature of the harassment.

Finally, when harassment is committed by a co-worker or even a third party, employers can be held liable, but only if they have been negligent in responding to harassment that they knew about, or should have known about.

With respect to the Letterman situation, although much of the news focus has been on the responsibility and potential liability of CBS, the network on which the Late Show with David Letterman airs, both Letterman and all the women involved seem to work for an independent production company called Worldwide Pants Inc.

CBS, then, may face no liability for what happened, even if allegations of harassment are made and proven. However, Worldwide Pants could be on the hook if there is liability and it is deemed the "employer" of the person who complains.

Finally, David Letterman himself cannot be sued individually under Title VII, though any judgment against his own company would obviously have financial ramifications for him. And under state law, it is sometimes possible to hold an individual harasser liable, in addition to the employer at large.

The Letterman Situation: At This Point, We Don't Know Enough To Tell If Harassment Occurred

Although there has been plenty of media coverage of the Letterman scandal, we actually know very little about the underlying events. But we do know, based on Letterman's confession, that he had sexual relationships with at least a handful of women who worked for him.

However, when it comes to evaluating the possibility of sexual harassment, what we do not know is more important than what we do. We do not know, for example, how many women in the office he was involved with. We don't know the circumstances of any of the relationships: When did the relationships occur, and are any of them still ongoing? Were they truly consensual, or was there a quid pro quo situation? Were there women who were involved with Letterman who were rewarded or singled out because of the relationships? Conversely, were the women and men who were not involved with Letterman affected adversely by the relationships?

Because of these gaps in our information, it is impossible to say at this point whether Letterman committed legally actionable sexual harassment. But below, I will highlight the points readers may want to keep an eye on, as facts continue to reveal themselves and as the criminal case against Halderman proceeds.

One Key Question: Were the Relationships Coerced or Otherwise Unwelcome?

In order for a sexual harassment case to materialize here, someone would have to complain. For instance, one of the women who was involved with Letterman might, in theory, complain. And, if she had been coerced into the relationship with Letterman by promises of job benefits or threats of adverse consequences, she could allege quid pro quo harassment.

Alternatively, if she found the advances unwelcome, but she was not outright coerced or extorted by threat, then she could potentially fall back on a hostile environment claim. Indeed, the first Supreme Court case to acknowledge the existence of the hostile work environment claim, Meritor Savings Bank v. Vinson, involved a bank teller who had been in a long-term sexual relationship with her boss. She later claimed, successfully, that the relationship was unwelcome, and the Court distinguished between conduct that was voluntary (but could nonetheless be harassment) and conduct that was truly welcome (which was, by its nature, not harassment).

In the Letterman case, it remains an unknown whether the conduct of the women was coerced or whether Letterman's advances (assuming he, not the women, made the advances) were unwelcome.
Some have argued that sex with the boss is inherently coercive and therefore always inappropriate – but that is definitely not a reflection of the law as it now stands. Still, it is possible to argue that behavior that may not be illegal is nonetheless morally wrong. And The National Organization for Women (NOW) made just such an argument when it issued a press release declaring Letterman's behavior inappropriate. As the statement read:

"Recent developments in the David Letterman extortion controversy have raised serious issues about the abuse of power leading to an inappropriate, if not hostile, workplace environment for women and employees. In the case of Letterman, he is a multi-million dollar host of one of the most popular late-night shows; in that role, he wields the ultimate authority as to who gets hired, who gets fired, who gets raises, who advances, and who does entry-level tasks among the Late Show employees. As "the boss," he is responsible for setting the tone for his entire workplace -- and he did that with sex. In any work environment, this places all employees -- including employees who happen to be women -- in an awkward, confusing and demoralizing situation."

While NOW may well be correct that Letterman's behavior has set an inappropriate or even discriminatory tone, that behavior may not constitute unlawful harassment (although it also may, if more facts come to light). Title VII law has, by and large, failed to grapple with the "toxic environment" problem that plagues many workplaces. It focuses on individual incidents and interactions, at the expense of stepping back and taking the broader look that NOW calls for. The mere fact that women in an office had sex with the boss does not transform the situation into a provable case of sexual harassment.

When one of the parties to a workplace relationship is the boss, however, it does change the game a bit. First, if actionable harassment is proven, the company's liability should be automatic, as explained above, without the benefit of any defense. Second, when there is such a dramatic power disparity between an alleged harasser and a plaintiff, it will likely be easier to convince a fact-finder that the relationship was coerced or exploitative. In this particular case, however, Letterman's fame and success may have the opposite effect, making it easier to convince a fact-finder that the women welcomed or even sought out the relationships, hoping to gain fame, fortune, or some other advantage. Indeed, Letterman's wife was his employee when they first became an item many years ago.

Interestingly, one of the women allegedly involved with Letterman posted the following comment – apparently in a humorous vein -- on her own website: "Okay. Here it is. My big comment on Mr. Letterman. It is this: As you can imagine this is a very emotional moment for me because Dave promised me many times that I was the only woman he would ever cheat on." Such a joke seems a very long way from an allegation of sexual harassment.

Of course, the fact that women did not in the past – and have not – yet come out and complained, does not rule out the possibility that harassment occurred, or that a valid case could be made. Many victims of harassment fail to complain about harassment for fear of retaliation or for other reasons, as I explain in a previous column. In this case, a working comedy writer might prefer to keep on writing, with Letterman as a mentor, rather than to file even a meritorious sexual harassment suit against such a powerful figure. The job is lucrative and interesting, and opportunities for women, unfortunately, are still comparatively few. (I discuss some of these issues in a previous column about a sexual harassment suit against the writers of Friends.)

What About a Suit By the Other Employees? Is Sexual Favoritism Actionable?

Assuming the relationships were truly consensual, could the other employees have a cause of action? Many employers ban even consensual relationships at work between supervisors and subordinates (or sometimes between co-workers of any type), but the company employing Letterman and the women he had sex with does not appear to have had such a policy. Could other employees nonetheless sue for discrimination?

Courts have struggled with the question whether Title VII's prohibition on sex discrimination is violated when, for example, a supervisor grants preferential employment treatment to a paramour, based on their intimate relationship.

The struggle comes because Title VII does not apply to all conduct that is inappropriate, immoral, unethical, distasteful, or even demonstrably unfair; it applies only to discrimination. But to answer the legal question whether harassment occurs when an employee is treated worse than the boss's paramour, more probing analysis is necessary.

Although sexual favoritism was first recognized as a potentially valid claim under Title VII in the 1980s, few plaintiffs have succeeded with the claim. The basic problem with these cases is that when a male supervisor favors his girlfriend at work, all other employees are disadvantaged – both male and female. That makes it hard for any of them to prove that their disadvantage is discriminatory on the basis of gender. If a woman says she was disadvantaged by the boss's girlfriend's promotion, then the company or the boss can point to a male co-worker who was disadvantaged in the same way. And if both sexes suffer, some will conclude the harassment was not "because of sex" as Title VII requires.

To prevail in a sexual favoritism case, the non-preferred employees would need to prove one of the following scenarios:

  • Implicit "quid pro quo": when employees understand that sexual submission is expected of them as a condition of job advancement;
  • Inequality of opportunity: when male employees claim they are deprived of the opportunity to get ahead by sleeping with the boss, because plainly the boss was only interested in female paramours;
  • Widespread favoritism: If sexual favoritism is sufficiently widespread so as to transform the environment into a toxic one that revolves around sex, then both men and women may have a claim for sex discrimination.

A Policy Guidance published by the Equal Employment Opportunity Commission in 1990 recognizes the first and third theories on this list as valid. As to the third theory, the guidance expressly states that isolated incidences of sexual favoritism, while clearly inappropriate, are not considered unlawful by the EEOC.

While it does seem that "sex with the boss" was widespread at the Letterman Show, it's not clear whether favoritism accompanied it. One of the women, for example, reportedly received money to pay for law school while she was involved with Letterman, but the money seems to have been issued as a loan and in fact paid back. The same woman gradually earned an "on air" presence on the show, even though she had a backstage position. Was that favoritism? Perhaps, but maybe not favoritism that was sufficient to change the entire nature of the workplace for her co-workers – a requirement under the law.

Are There Procedural Obstacles to a Lawsuit Arising Out of Letterman's Conduct?

If the women involved with Letterman or their co-workers have a viable theory of harassment to pursue on the merits, there may still be procedural obstacles that stand in the way of a successful suit. The statute of limitations is the most obvious potential roadblock. Plaintiffs cannot file a Title VII lawsuit unless they have filed a charge with the EEOC, the federal agency charged with implementing Title VII, within 180 days of the unlawful employment practice they are challenging. (Or 300 days, in states that enter a work-sharing agreement with the EEOC.)

For claims of hostile work environment harassment, this period can be effectively extended if there is a related series of incidents, at least one of which occurs during the requisite period prior to the filing of an EEOC charge. (I explained the origins of this rule in a prior column.) It may well be that, in this case, some or all of the relationships ended too long ago to permit a timely claim today, either by the women themselves or by their co-workers.

The Bottom Line: A Sexual Harassment Case Requires Substantially More than a Set of Boss/Employee Relationships

In sum, the news of David Letterman's many affairs with his employees fairly raises the question of whether sexual harassment occurred – and provides a teachable moment on the sometimes damaging consequences of sex at work. Depending on the facts, some of which have yet to emerge, NOW may be justified in condemning Letterman's ethics. But what about the law?

At least so far, it is too soon to pronounce this a situation of sexual harassment. Letterman's conduct may have been inappropriate, inadvisable, and even demeaning, and yet still not rise to the level of unlawful discrimination. That may represent a weakness in existing law, but as of now, that's the framework we must use to analyze the question "Was this sexual harassment?"


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.