Thursday, October 8, 2009

Letterman’s sex scandal: who’s the victim?

Last week, David Letterman revealed that he was the victim of an extortion plot. Here’s a quick rundown…

David Letterman had a sexual relationship with his assistant, Stephanie Birkitt. At the time, Letterman was dating Regina Lasko, and Birkitt was dating Robert Joel Halderman. When, Halderman found out about the affair, he tried to blackmail Letterman, threatening to go public if Letterman didn’t pay him $2 million. Letterman reported the extortion attempt to the police, and Halderman was arrested. On October 1, Letterman went on The Late Show and admitted to having sex with female staffers. Apparently, Letterman “has a long history of pursuing relationships with employees.” For the full story, click here.

So who’s the villain here? Most people agree that Haldeman’s extortion attempt was despicable (check out the comments on US Weekly’s website). But responses to Letterman’s conduct have been mixed.

CNN recently published a report entitled: “Viewers still in Letterman's corner.” Since the scandal, Letterman’s ratings have increased by nineteen percent. Celebrities, like Barbara Walters have publicly expressed their support for Letterman. To read more celebrities’ statements defending Letterman, click here.

Not everyone is so supportive. The National Organization for Women (NOW) issued a statement sharply criticizing Letterman. NOW’s president accuses Letterman of promoting a hostile, uncomfortable work environment. To watch the statement, click here.

CBS conducted an internal investigation, which determined that “Dave is not in violation of our [sexual harassment] policy and no one has ever raised a complaint against him.” To read CBS’s statement, click here.

So, as long as no one complains, it’s okay to have sex with your staff? NOW’s president says, “No!” She points out that “men such as Letterman make decisions on hiring and firing, who gets raises, who advances and who does entry-level tasks.” When a boss has sex with his employees it puts them “in an awkward, confusing and demoralizing situation.” To read more of NOW’s response, click here.

Letterman’s sex scandal represents a disturbing trend. The scandal parallels Meritor Savings Bank v. Vinson, the germinal case for modern sexual harassment claims. Mechelle Vinson was a bank teller. Sidney Taylor was the bank’s vice president. According to Vinson, Taylor invited her to a hotel to have sex. Out of “fear of losing her job,” Vinson submitted. Taylor went on to have sex with Vinson 40-50 times. At a bench trial, Vinson described some of these encounters as “forcible rape.” Taylor, on the other hand, denied the sexual relationship entirely. Taking a middle ground, the court believed that the two had a sexual relationship, but determined that the relationship was “voluntary.”

Can sex be “voluntary” if an employee’s job security depends on it? Letterman and Taylor probably didn’t say “I can fire you if you don’t have sex with me.” They didn’t need to. A subordinate employee knows that her superior can fire her. And what if that employee cannot afford to lose her job? Vinson could have been living paycheck to paycheck. Working for David Letterman’s production company could be a once in a lifetime opportunity. When the power differential is so skewed, the employee must feel enormous pressure to consent.

Other areas of the law recognize that individuals cannot truly consent to sex in similar situations. Under statutory rape laws, minors are “legally incapable of consenting to sexual intercourse.” A doctor can lose his medical license for having sex with his patient, regardless of whether or not the sex was consensual (Business & Professions Code § 2220.05(a)(4)).

Title VII recognizes a civil cause of action for sexual harassment. But a Title VII plaintiff needs to present a mountain of evidence to prove that she was the “victim” of sexual harassment, and it is easy to discredit her story by arguing that a sexual relationship was “consensual.” Maybe it is time for Title VII to recognize that sexual relationships between superiors and their subordinates are never “consensual.” If that’s the case, bosses like Letterman might find themselves shelling out a whole lot more than $2 million.


Kathleen said...

While I understand the power disparity when considering just about anyone’s relationship with David Letterman (and those with similar celebrity status), I am so far reserving judgment on this one. As far as any news story suggests, David Letterman has been one half of an office romance, and not much else is known. To me that makes it different from cases of coercion and forcible rape.

I do not think David Letterman should be lauded for what sounds like sleeping with younger women who were just starting out (career-wise), but I think we have to assume a lot for this to be outrageous. If we say, for example, the power of his position makes this behavior sexual harassment per se, does that mean women cannot actually consent to sex with workplace superiors? Again, I do not want to be seen as condoning his actions, but even though office romance isn’t always the best idea, it happens. So far the only information really out there is that these relationships happened between consenting adults. CBS’s statement is also telling – no one alleges complaints against Letterman, and there appears to be no ban on superior/subordinate relationships in their sexual harassment policy.

With a power disparity this wide, a lot of things could have gone on that would make Letterman’s conduct inappropriate. And because of his star status and influence, there are many reasons women may not speak out if his conduct was harassing. At the same time, a lot of women (and people in general, to broaden the scope) find sexiness embodied in positions of power or this type of imbalance. That doesn’t make it a good decision, but I don’t think it automatically makes him the villain. It’s true that he holds a lot of power, and could very well direct the track of these women’s careers if he chose, but is this a risk that women can ever be credited with the cognizance to take?

Eve said...

While I agree that David Letterman causes a hostile work environment by having sex with female staffers, I disagree with your final remark: “Maybe it is time for Title VII to recognize that sexual relationships between superiors and their subordinates are never ‘consensual.’” I also find it problematic to analogize statutory rape laws and sex between employees and their superiors. There are many instances in which relationships with superiors are consensual, and arguing that Title VII should find otherwise denies employees’ sexual agency.

Nevertheless, something needs to change. According to CBS, Letterman did not violate sexual harassment policy; so it seems like it is time for CBS to change its sexual harassment policy. The problem is not only that Letterman thought it was appropriate to behave in this manner, but that the drafters of CBS’s sexual harassment policy also thought his behavior was acceptable (at least publicly).

NOW called for CBS to take action, but contends that with “just two women on CBS' Board of Directors, we're not holding our breath.” This remark implies that men will not want to institute change, but if NOW wants the policy to change they should be engaging with the Board of Directors. Reinforcing the notion that men in power do not care about these issues allows men to ignore them.

Anne Kildare said...

Kathleen and Eve bring up a good point. Telling workers that they cannot consent to sex with their bosses seems to deny them sexual agency. I can accept that some workers have healthy balanced romantic relationships with their bosses. But those workers probably won't to sue their bosses for sexual harassment.

An adult can be tried for statutory rape, regardless of whether the minor filed charges. A doctor can lose her license, regardless of whether the patient complained. In this sense, Title VII plaintiffs have more sexual agency than minors or patients.

Can we trust that workers will not exploit a rule that presumes sexual harassment any time they have sex with their bosses? I don't know. At least my suggestion puts the power back in the workers' hands.