Further discussion of how lying about your past to avoid alienating a romantic partner could become a felony in Massachusetts if a state lawmaker has his way (Volokh, May 5; see Mar. 12). More: Greenfield (feminist law professors' proposals).
Recently in Fear of Flirting Category
The Eleventh Circuit on Monday "held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally. Rather, her complaints, as described by the Eleventh Circuit were chiefly related to "sexually crude language that offended her." Among the sources of that offense, per the court opinion, was "a radio program that was played every morning on the stereo in the office", per Eugene Volokh "a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief". (May 2; title post borrowed from Bader). More: Fulton County Daily Report, Evil HR Lady ("And you wonder sometime why we HR types put a damper on the fun.").
Do as we say, not as we do?
Ohio Attorney General Marc Dann is leading a group of 18 state Attorneys General seeking a ruling in the U.S. Supreme Court that employees can not be retaliated against by their bosses for filing a sexual harassment complaint.The case comes at an ironic moment for Dann, as his office is investigating claims by two 26-year-old women who work at the Attorney General's office that they were sexually harassed on and off the job by their boss, Anthony Gutierrez, a close friend of Dann's who shared a Columbus condominium with him.
("Dann Defends Woman Amid Own Office's Sexual Harassment Flap", Fox8 Cleveland, Apr. 16; Mark Rollenhagen and Reginald Fields, "Employee in Ohio attorney general's office files police report", Cleveland Plain Dealer, Apr. 19). Amid talk of a cover-up, Dann has also denied a request from the Columbus Dispatch under the state's public records law "to review three months' worth of e-mail messages between him and his then-scheduler, Jessica Utovich," both of whose names turn up as possible witnesses in colorful text messages offered as evidence in the claims. "Dann in the past has said e-mails are public records and also has sought troves of messages from public offices when he was a state senator and the Democratic candidate for Ohio's top legal office." (James Nash, "Dann won't release e-mails", DispatchPolitics (Columbus Dispatch), Apr. 13; Julie Carr Smyth, "Sexual complaint probe at top cop's office intensifies", AP/Akron Beacon Journal, Apr. 18; Mark Naymik, "Dann has habit of hiring his friends; some have proved to be embarrassments", Openers (Cleveland Plain Dealer blog), Apr. 12; Reginald Fields, "Dann employee files complaint with police", Openers, Apr. 18).
After initial resistance, Dann did release some information that raised reportorial eyebrows:
In a surprising reversal, Attorney General Marc Dann's office released 12 pages of notes that detail allegations of repeated sexual harassment and possibly an attempt to destroy text messages that may document the incidents. ...Dann's Equal Employment Opportunity officer, Angela Smedlund, interviewed Cindy Stankoski and Vanessa Stout on March 31 about problems they had had with their boss, Anthony Gutierrez, who is Dann's friend and former roommate.
Smedlund's notes reveal the following:
Stankoski agreed to go out for drinks with Gutierrez last Sept. 10, but said she soon "felt tipsy and trapped." She agreed to go to an apartment Gutierrez shared with Dann and Communications Director Leo Jennings III. She called and text-messaged friends that night.
In the margin, Smedlund wrote: "Leo & Tony destroyed texts Tony admitted to Charlie." The notes do not identify Charlie's last name.
Jennings and Gutierrez are now both on paid administrative leave.
(Laura A. Bischoff, "Dann's office unveils documents detailing harassment report", Lebanon, Oh. Western-Star, Apr. 16; Rollenhagen/Fields, "Reports show Dann was aware of Gutierrez's history of troubles", Cleveland Plain Dealer/Youngstown Vindicator, Apr. 18; Bertram de Souza, "Will Dann survive the crisis?", StirFry (Youngstown Vindicator), Apr. 17). Perhaps unfortunately in retrospect, the noisily anti-business Dann had been lionized in the New York Times after his election as a possible "next Eliot Spitzer".
More: Above the Law, John Phillips ("Other key words are pajamas, condo, inappropriate text messages, Hawaiian pizza, booze, passing out in a bedroom, unbuttoned pants upon waking up, and nothing on but his underwear."), Law and More. Update: Dann's emails with scheduler released (Dispatch via Genova)
Mark Steyn on the youngster charged with sexual harassment in suburban Washington, D.C.:
Randy Castro is in the first grade. But, at the ripe old age of 6, he's been declared a sex offender by Potomac View Elementary School. He's guilty of sexual harassment, and the incident report will remain on his record for the rest of his school days - and maybe beyond.Maybe it'll be one of those things that just keeps turning up on background checks forever and ever: Perhaps 34-year-old Randy Castro will apply for a job, and at his prospective employer's computer up will pop his sexual-harasser status yet again. Or maybe he'll be able to keep it hushed up until he's 57 and runs for governor of Virginia, and suddenly his political career self-detonates when the sordid details of his Spitzeresque sexual pathologies are revealed.
("Attack of the preschool perverts", syndicated/Orange County Register, Apr. 12; Brigid Schulte, "For Little Children, Grown-Up Labels As Sexual Harassers", Washington Post, Apr. 3). A contrary view (letter to the editor from Cynthia Terrell of Takoma Park, Md., WaPo, Apr. 5): "The Post showed appalling insensitivity to the inappropriate nature of Randy Castro's act. ...our culture remains largely indifferent to privacy and harassment issues involving gender."
...for reading a book? And an anti-racist book at that? That's what FIRE (Foundation for Individual Rights in Education) says happened to Keith Sampson, a student with a sideline job on the IUPUI (Indiana University - Purdue University Indianapolis) janitorial staff who ignored co-workers' objections to a book he brought in to read on his break time about the struggle against the Ku Klux Klan. (Azhar Majeed, "Read a Book, Harass a Co-Worker at IUPUI", Mar. 5; follow-up, Mar. 6 with links to coverage by Paul Secunda and David Bernstein). Note, in the Secunda comments, that the school appears to have later rescinded the discipline and assured Sampson that he is free to read the book -- which the IUPUI library itself stocks -- on break if he likes. And: Eugene Volokh, Howard Wasserman.
In a deposition, [Dov Charney, founder and chief executive of casual fashion giant American Apparel] said that during the time of Nelson's employment he "frequently had been in my underpants . . . because I was designing an underwear line."(A local designer "burst into laughter" when hearing Charney's explanation from a reporter; per the New York Post, the garment that the LA Times is too prim to mention is a "sock on his privates"; per Dateline NBC, it appears to have a rhyming name.) Mary Nelson's suit against Charney is docketed in Los Angeles Superior Court; he denies creating a hostile work environment or propositioning Nelson and claims Nelson was fired for poor performance (which Nelson, in turn, denies). This is the fourth sexual harassment suit against Charney, who won one and settled two. (Carla Hall, "Lawsuit has fashion mogul in spotlight", Los Angeles Times, Jan. 17; Dateline NBC (via ABA Journal))."I'm very proud of the underwear," he added.
In an interview, he also defended appearing in front of Nelson with just his genitals covered. "The demonstration of the" garment, Charney said, "was a product we were considering -- and I was in fit condition for it." He ultimately decided against putting it in the American Apparel line. "It wasn't classy," he said.
Anucha Browne Sanders will get $11.5 million, including $4 million in legal fees, to settle her claim of misconduct by Isiah Thomas and others. The Garden did not keep quiet about its view of the result, calling it a "travesty of justice". (Richard Sandomir, "Garden Settles Harassment Case for $11.5 Million", New York Times, Dec. 11). Earlier: Oct. 2, Oct. 4.
Turning the tables on an accuser: "Dance star Michael Flatley has won an $11 million settlement in the United States from a woman who falsely accused him of sexual assault and attempted to extort money from him, he said in a statement." ("Michael Flatley floors floozy for fortune", Brisbane Times, Dec. 10). We covered the original $35 million suit against the "Riverdance" impresario, and his later countersuit, on Sept. 14, 2004, Jul. 30, 1006, and Aug. 22, 2006. Needless to say, very few wrongful accusers are likely to have this kind of money on hand to pay over in response to countersuits; but per syndicated columnist Stacy Jenel Smith, the woman who charged Flatley with assault, Tyna Marie Robertson, "had dated other wealthy and well-known men through the years - relationships that sometimes ended in litigation". ("Dark Side of Fame: Becoming A Target for Sex Charges, Lawsuits", undated). More, including information on Robertson's lawyer, D. Dean Mauro, at ABA Journal. Update/clarification Dec. 15: notwithstanding the erroneous use of the term "settlement" in last week's press reports, OnPoint News makes clear that what Flatley actually got was a default judgment, and that Robertson is unlikely to have means to pay.
Thanks to Walter Olson for welcoming me back after a short hiatus from my last guest blogging stint. I often see stories worth sharing, this one in particular [excerpt below, full story here.]
A group of well-heeled women who paid up to $1,500 to snag a man through one of the nation's priciest and fast-growing online dating services — It's Just Lunch — has filed a civil lawsuit in Manhattan federal court, claiming the lunchtime setups were not what they bargained for.
This reminds me of this hilarious YouTube clip which is strikingly on point in this instance. Overlawyered indeed. And, $1,500 for a date? That's about as out-of-touch as $27K for wedding flowers (with accompanying lawsuit.) Well, these "well-heeled" women expected George Clooney but (apparently) got Gilbert Gottfried instead. Maybe, simply, their hopes were just too high. Especially if they were prepared to fork over $1,500 for a date. Caveat emptor, I'm afraid.
Hans Bader comments. Overlawyered earlier commented on the Isiah Thomas sexual harassment case October 2.
Granted: sexual harassment is wrong, and we at Overlawyered do not approve of it. I have no reason to side with one party or the other in the he-said/she-said dispute in the lawsuit against Isiah Thomas, James Dolan, and the owners of the New York Knicks, MSG, though one questions the relevance of Stephon Marbury's sexual exploits with a third party and whether that salacious testimony perhaps prejudiced the jury. But even if one agrees that everything Anucha Browne Sanders alleged occurred? Well, that $11.6 million award—which does not even include a penny of economic damages—is outrageous. Hey, I'll let Isiah Thomas call me a bitch for a hundredth that amount. Given the Supreme Court's command that punitive damages have some reasonable relationship to compensatory damages, it is hard to understand why a jury was allowed to make an eight-digit award when there has yet to be any compensatory damages established.
Too bad the courts have decided to leave the Eighth Amendment's Excessive Fines Clause on the shelf, it might otherwise be helpful to everyone from Virginia motorists to sexual harassment defendants (Ralph Reiland, "The ignored amendment", Pittsburgh Tribune-Review, Aug. 27). More resources here, here, and here (noting Supreme Court's ruling in Browning-Ferris that the clause restrains excessive fines only when payable to the government, not private parties).
An article in the new American Journalism Review (Rachel Smolkin, "Justice Delayed", Aug./Sept.) lays out at length the sins of the media in covering the allegations of prosecutor Mike Nifong in the Duke lacrosse case. Leading offenders such as the Durham Herald-Sun, New York Times and TV's Nancy Grace all come in for their share of reproach, but of note also is this on Wendy Murphy, feminist lawprof and frequent broadcast commentator on the case:
One prominent guest on Grace's show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, "Look, I think the real key here is that these guys, like so many rapists--and I'm going to say it because, at this point, she's entitled to the respect that she is a crime victim."Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on "CNN Live Today" on May 3, 2006, she posited, "I'd even go so far as to say I bet one or more of the players was, you know, molested or something as a child." On June 5, 2006, MSNBC's Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: "Hitler never beat his wife either. So what?" She later added: "I never, ever met a false rape claim, by the way. My own statistics speak to the truth."
Asked to evaluate her commentary, Murphy said in an interview: "Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that's never my style." She notes that she's invited on cable shows to argue for a particular side. "You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I'm assigned," she says. "So of course it's going to sound like I'm arguing in favor of 'guilty.' That's the opposite of what the defense pundit is doing, which is arguing that they're innocent."
The last passage prompts Mark Obbie at LawBeat (Jul. 18) to reflect: "Has there ever been a clearer argument for the utter show-biz meaninglessness of such 'debate' shows?"
On a different note, the much-anticipated book on the controversy by Stuart Taylor, Jr. and K.C. Johnson, "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case", is due out a month from now and is already selling well on Amazon. More: John Steele Gordon, "Racial Role Reversal", WSJ/OpinionJournal.com, Jun. 20.
In McMinnville, Ore., it may consist of fanny-patting in school hallways by seventh graders. Following a public outcry, Yamhill County D.A. Bradley Berry has now dropped the felony counts -- the resulting status as registered sex offenders might have followed the youngsters through life -- but he still wants to have Cory Mashburn and Ryan Cornelison at least given probation on misdemeanor counts. (Scott Michels, "Boys Face Sex Trial for Slapping Girls' Posteriors", ABCNews.com, Jul. 24; Mark Steyn, "Swat somebody's butt, and yours belongs to the D.A.", Orange County Register, Jul. 28; Jeanine Stice, "Gene's right about The McMinnville Two", Salem Statesman-Journal, Jul. 24). Update Aug. 22: charges dropped.
Arthur Friedman announced to his wife, Natalie, after ten years of marriage, that he wanted the couple to engage in group sex and swinging, so he could gratify himself watching his wife have sex with other men. Natalie, however, fell for one of her partners, German Blinov. The two left their spouses and ran off with one another. Arthur sued Blinov under the Illinois alienation of affection laws, and, amazingly enough, won $4802 from a jury that thought the case was stupid. (Steve Patterson, "Putting a price on love", Chicago Sun-Times, Jul. 1). The former Mrs. Friedman expresses dismay about the award, but it's not clear whether it's the fact of the award or the trivial amount that offends her. Chicagoist and Alex Tabarrok are appropriately appalled.
Most states have passed the tort reform of abolishing the alienation of affection cause of action. Earlier on Overlawyered: Nov. 2006 and May 2005 (North Carolina); Nov. 2004 (Illinois); May 2000 (Utah).
Update: Of course, one doesn't necessarily need that 19th-century cause of action when entrepreneurial lawyers are in play. Recently fired WellPoint CFO David Colby allegedly rotated among several girlfriends he met on a dating website, several of whom he allegedly promised to marry, even as he was married to someone else (albeit separated). One of the ex-girlfriends is suing WellPoint for "facilitat[ing] Colby's lifestyle"; it seems Colby pointed to his webpage on the WellPoint site to seduce some of his targets. (Lisa Girion, "WellPoint named a defendant in sexual-battery suit", LA Times, Jun. 29; see also "Women claim lives with WellPoint exec", LA Times, Jun. 13 (no longer on web)).
At age 15 she began a year-long sexual relationship with her 22-year-old manager, which ended in breakup. Now she wants money from the restaurant for letting it happen. The criminal defense lawyer representing Hector Figueroa, the boyfriend/manager, says the complainant's family knew about the consensual affair while it was going on. "She saw a pot of gold at the end of the rainbow and decided to pursue [a civil suit]." (Jordana Mishory, "Teen Sues McDonald's Franchisee Over Sex With Boss", Florida Daily Business Review, Jun. 21).
That belitting phrase was uttered not by a supervisor, nor yet by a co-worker, but by a private citizen at a hearing where Amy Lee was being flayed by public commenters for her performance as assistant director of San Francisco's Building Inspection Department. Even so, it has now resulted in a settlement in which the city has agreed to fork over $156,000 in damages and attorneys fees to resolve Lee's charges of sexual harassment and pregnancy discrimination. Supervisor Tom Ammiano, not generally known as an enthusiast for employer's rights, nonetheless
cast the lone vote on the board against the settlement [and] called the payout ludicrous.The "pregnancy brain" remark was out of bounds, Ammiano said. But it was made at a public meeting, where officials take shots all the time, he said.
"You can't control public comment," Ammiano said.
Lee remains on the public payroll. (Phillip Matier and Andrew Ross, "Former chief of Building Inspection gets damages", San Francisco Chronicle, Apr. 30).
James Pacenza's $5 million lawsuit against his employer for firing him for seeking cybersex at work is still pending today after being filed in 2004. It first got coverage in Business Week and Overlawyered in December, was picked up in News of the Weird a few weeks ago, and then covered by the AP today (h/t W.F.). Pacenza blames his sex- and Internet-addiction on his Vietnam War service and triggers from the Gulf War; as evidence that he should be rehired, he cites to his obscene phone calls to strangers and visits of prostitutes. We have the major filings:
- Complaint
- IBM motion for summary judgment (part 1)
- IBM motion for summary judgment (part 2)
- Pacenza opposition to summary judgment
(Updated to note earlier Overlawyered post.)
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