Posted by Melissa Fleischer, Esq. on Oct 13th 2009

Everyone out there cannot keep from commenting on whether or not David Letterman’s alleged affairs with staffers who worked for him was or was not sexual harassment.  So perhaps a legal analysis of the law with regard to sexual harassment against a backdrop of the facts that have been alleged so far is in order.

Two Different Kinds of Sexual Harassment

Sexual harassment is a subset of employment discrimination based upon sex which is unlawful under Title VII of the Civil Rights Acts of 1964 and 1991 as well as under most state’s laws.  There are two types of sexual harassment that exist.  Perhaps the type that has received the most attention although not as prevalent today is “Quid Pro Quo Harassment”.  The other type of sexual harassment is “Hostile Work Environment Harassment”.

Quid Pro Quo Harassment

The EEOC definition provides that Quid Pro Quo sexual harassment exists “when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1)submission to such conduct is made either explicitly     or implicitly a term or condition of an individual’s employment, or (2)submission to or rejection of such conduct by an individual is used as the basis for employment decisions    affecting such individual”.

What does this mean in plain English?  This is the situation when a manager says to a subordinate, “sleep with me or you will be fired”.  In other words, the manager abuses his/her power and authority by promising employment benefits or threatening job detriments based on whether the subordinate provides the requested sexual favors.  Of course the manager does not have to use those exact words.  If the manager subtly implies or conveys the message that the employee will get ahead if the employee provides sexual favors, that is enough.  So since David Letterman allegedly slept with employees who worked for him and he certainly had the power to hire and fire them there is a possibility that his actions could constitute sexual harassment.  However, in any sexual harassment action, whether it is quid pro quo or hostile work environment harassment, there is also the requirement that the harassment be unwelcome. Therefore, any employee alleging sexual harassment would have to prove that the sexual relations were unwelcome to her and not consensual.  If they were consensual, any sexual harassment claims would probably not be successful.

Hostile Work Environment Harassment

The other type of sexual harassment is “hostile work environment harassment”.  The EEOC definition of this type of sexual harassment is that it exists “when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.”

So what type of actions could create a hostile work environment?  This is the situation where groups of employees sit around and tell sexual jokes or whistle at an employee as the employee works by.  Courts also require that the jokes, comments, etc. be severe and pervasive in order to substantiate this type of claim.

Although only managers can engage in quid pro quo harassment this is not so with hostile work environment harassment.  Co-workers, managers or even consultants and clients who come onto an employer’s premises can create a hostile work environment.  A manager who condoned this type of activity and engaged in it himself could certainly be held to have violated the company’s sexual harassment policy as well as the law.  So if it were proven that David Letterman condoned an atmosphere of sexual jokes and comments by his staffers and he engaged in this himself, one might be able to prove that he had violated his company’s sexual harassment policy as well as the law.

Farragher and Ellerth Affirmative Defenses

However, there are two important defenses that an employer has to a claim of sexual harassment.  In 1998 the US Supreme Court in the Farragher and Ellerth cases held that when a supervisor engages in harassment, for instance says “sleep with me or you will be fired” and the employee does not sleep with him and the manager does not take the tangible employment action, namely he does not fire the employee but only had threatened to do so, then the employer may assert an affirmative defense.  The affirmative defense is that if the employer can prove that it exercised reasonable care to prevent and promptly correct sexual harassment and if the employer can prove that the claimant unreasonable failed to complain then the employer may be successful in avoiding any liability for the harassment.  Accordingly, if David Letterman’s employer could show that it exercised reasonable care to avoid sexual harassment and that any employee with whom Letterman allegedly had an affair unreasonably failed to complain about harassment, then the employer might have a good chance of avoiding any liability for any harassment by Letterman.

Manager’s Personal Liability for Harassment

What about Letterman’s personal liability for any harassment?  Although there is no personal liability for managers under federal law, courts in New York have held that managers can be held personally liable for harassment that they aid and assist in.  If it could be shown that Mr. Letterman aided and abetted any harassment in the workplace then a plaintiff might be able to hold Mr. Letterman personally liable for such harassment.

What Action Should His Employer Take?

Now that all of these allegations have come out the best course of action for Mr. Letterman’s employer would probably be to conduct an investigation to determine if their was any alleged harassment.  If the employer found that there was any harassment then the employer would be required to take “prompt corrective action”.  What is prompt corrective action?  It is not necessarily termination.  It merely requires that the employer take any action and usually it would be disciplinary action that would ensure that any harassment stopped.

So Was It Sexual Harassment?

So it remains to be seen what, if any thing will happen if any employee comes forward with any sexual harassment claims in the Letterman case.  However, now at least there is a better understanding of the law in this area and how it would apply to the facts of this case as they continue to emerge and if any of the allegations were proven to be true.