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Can Letterman Beat the Clock?
There's been no shortage of talk about whether David Letterman could face sexual harassment lawsuits in light of his admission that he's had sexual relations with employees.
To be sure, no women have complained publicly of harassment at Worldwide Pants -- in fact, the reports we've read so far are from female employees who have been happy to work for -- and socialize with -- Letterman. But his admission eliminates a typical hurdle in these cases: a standard defense for a sexual harassment claim is to simply deny that the behavior happened. Letterman's admission eases that concern for a potential plaintiff.
Still, other significant hurdles remain, and they are worth noting as speculation builds that an aggrieved employee (or former employee) might seek an easy payday.
First, proving a sexual harassment claim requires a showing not only that the offended employee felt harassed; she also must prove that a reasonable employee would have been offended by behavior at the office. The defense can seek testimony from happy employees to counter that evidence.
Then, there's the calendar. There are time limits on both federal and state sexual harassment claims. In New York, for example, state or city claims must be brought within three years from the date of the last harassing activity. Federal claims have a 300-day time limit. This means that employees long gone from Letterman's office can't surface with claims. (They can try to sue on other grounds, including emotional distress, but a judge obviously would consider the timing, which would seem opportunistic.)
And a plaintiff in a sex harassment claim has to be prepared to endure a robust defense that ordinarily includes a rigorous examination of her own character. The defense can and will seek medical and gynecological records and even therapy notes to search for weaknesses in the complaining woman's work performance and mental state. This is not a claim for a woman who wants to maintain her privacy.
Still, sexual harassment laws are serious and serve an important function. When a jury hears a claim and believes it, the results can be lucrative for the victim and embarrassing for the defendants, as the New York Knicks can attest. While it's entirely possible that David Letterman may find himself named in a sexual harassment suit, safeguards exist in New York and in federal law to test that claim against the real work environment at Worldwide Pants.
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Good question Tyler: two of the other three women thought to be on the President's short list -- solicitor general Elena Kagan and Homeland Security chief Janet Napolitano -- have not served on the federal bench. (Kagan was nominated to the D.C.