The National Organization of Women ("NOW") has issued a statement attacking David Letterman over his admitted sexual relationships with female employees. Recently, we reported that the Letterman case highlights legal issues related to extortion and sexual harassment, but the NOW criticism of Letterman is highly problematic.
The NOW statement accused Letterman of creating a "hostile work environment". The NOW statement said, "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."
The problem with the NOW accusation, from a legal point of view, is that the organization is equating an employer having sex with an employee with creating a hostile work environment, but the law does not make that bold an equation. An employer who uses is position of power to force or coerce an employee into having a relationship with him has, in fact, crossed the boundary line into actionable conduct.
Unless NOW, however, has learned of facts not yet known to the public, the charge is not based upon the facts of this case. We do not yet know the level of consent with these sexual liaisons, and, therefore, to jump to the conclusion that the sex actually amounted to creating a hostile work environment is unfair, at the least, and, quite possibly, simply reckless.
In our recent column, we pointed out that many companies have policies against employers having sexual relationships with employees, or even employees having relationships with other employees, because of the possibility that these relationships can lead to the type of charges that NOW has made, and sometimes those charges are accurate.
In this case, however, Letterman had the sex, the charges have been made, but Letterman's conduct did not necessarily constitute sexual harassment. Nevertheless, because Letterman engaged in the conduct, he left himself open to these charges (not to mention also allowing himself to be vulnerable to an extortion attempt). All in all, no matter how wrong it was for someone allegedly to attempt to extort Letterman, and no matter how reckless the NOW charges may be, maybe David Letterman would now say that the lesson of the Letterman affair (or is it "affairs"?) is to look for sex outside the workplace.