Gender & Sexuality Law Blog

A day doesn’t go by that we don’t hear about a man in the public eye being found to have had sex with female subordinates at work.  Today’s offender is 46 year-old Steve Phillips, ESPN baseball analyst (love that term, instead of “on-air baseball commentator who was accused of sexually harassing a female employee when he was general manager of the Mets in 1998″), who seems to have had a short-lived affair with a 22 year-old female production assistant.  Like David Letterman, whose office affair with a younger woman turned sour when her ex-boyfriend tried to blackmail Letterman, Phillips got into trouble when the woman he had been sleeping with began calling Phillips’ wife, Marni,  after he broke off the affair and sent her a letter graphically describing their relationship and Phillips’ birthmarks.  Mrs. Phillips filed for divorce in September, Phillips was fired from ESPN last Sunday, and today we learn that ESPN fired the young woman as well.  What a mess.

What relationship does this scandal bear to other recent sexual misconduct by guys in the public eye?  As we all know by now, David Letterman has had to perform public acts of contrition on his TV show after it became known that he had had multiple affairs with female members of his staff, yet the scandal seems to have been good for the show’s ratings and Letterman is nowhere close to being fired (doesn’t hurt that he is his own boss) or canceled by NBC.  Then there’s Elliot Spitzer, who, unlike Letterman but like Phillips, lost his job on account of his sexual misdeeds.  (I’ve blogged previously about the Spitzer mess – and actually see it as representing a kind of problem different from what’s at stake in the workplace affair cases, such as those of Letterman and Phillips).

Is sex with a subordinate always justification for termination?  Did ESPN get it right and CBS/”World-Wide Pants” (Letterman’s production company) get it wrong?  Does it always violate laws prohibiting sex discrimination in the workplace?  Should it?

The National Organization for Women has taken a strong position on this issue, issuing a press statement shortly after the Letterman-imbroglio broke condeming him and CBS for having created a “toxic work environment” for women.  Sleeping with his female staff created “an awkward, confusing and demoralizing situation” for female workers.  (Surely this could have been put somewhat better: Is awkwardness or confusion what the law of sexual harassment was designed to prevent?)

So here’s the thing: Are right-minded people supposed to conclude that women can never, never, consent to sex in the workplace – particularly with someone of greater seniority?  Is there anything else that you’d want to know about these cases in order to fully judge their illegality?  Is awkwardness or confusion enough?  What about implicit or explicit threats, promises of rewards, retribution, or prices to be paid once the affair ends?  Or should we hold the view – should the law hold the view – that the mere fact of the sex is enough to declare that sex discrimination is what happened?

Many feminists maintain that consent is not a meaningful concept in a workplace setting where sex takes place between a male superior and a female subordinate.  For them, the sex is from the start suspect and discriminatory.

Yet what is the cost to women’s sexuality of such an approach?  This is the challenge as we think through workplace sexual harassment doctrine for the 21st Century: How to acknowledge, on the one hand, that many, many women suffer explicit and implicit forms of humiliating and degrading harassment of a sexual nature in the places where they work, while at the same time crafting an approach to this issue that does not overdetermine women as always, already sexual victims – allowing some room for our sexualities to be more than an injury waiting to happen.

From the very start of the Letterman affair, when we knew nothing about the nature of the relationships he’d had with the women on his staff, many just assumed that the women he slept with were victims, felt discriminated against, exploited, and/or used.  But what if they didn’t?  What if they 1) were the ones who initiated the affair, 2) were embarrassed to have had it, 3) were bummed that their relationship with Letterman had ended, 4) were relieved that it was over, 5) had positive feelings about the affair, or 6) were indifferent about the whole thing?  Would this information change how we judged the situation?   Should it?  Or should we have a rule that starts from the premise that the likelihood of exploitation and discrimination is so high in workplace romances between male superiors and female subordinates that we ought to have a “prophylactic” rule (sorry) that prohibits and punishes them all, no matter what.

I incline in the direction of wanting a more subtle approach to the problem than that urged by NOW in it’s statement on the Letterman affair.  I’ve written about this in academic journals, and was recently interviewed by a Brazilian TV show that wanted to explain to their audience what the big deal was about Letterman’s affair.  You can watch some of it here:

And then there is just my quick and dirty explanation of sexual harassment law in the U.S. (with an added bonus-feature of my thoughts on the Roman Polanski arrest):