Stupid Human Tricks: On David Letterman and the Law

[WSJ_law_blog]

What to make of this David Letterman situation?

On the sheer spectacle of the thing, we could go on and on — the weirdness of the alleged extortion plot, matched pound-for-pound by the weirdness of his on-air “confession,” etc. But because we’re in the biz of all-law-all-the-time (except when we’re not, at which times you let us hear about it), we’re going to stick to the story’s legal intricacies.

Of course, there’s the alleged criminal plot — which seems to be getting very serious attention from the office of Manhattan DA Robert Morgenthau. (Click here for the WSJ story on the Friday arrest of extortion suspect Robert Halderman, which links to Letterman’s on-air confession from Thursday, as well as to remarks from Morgenthau at a Friday press conference. Click here for the NYT’s story.) For good measure, on this front, we shouldn’t overlook the sting operation on Halderman, which seems to have been well orchestrated by Letterman’s lawyer, whose identity is, oddly, still unknown.

What had us scratching our head is whether any current or former staffers with whom Letterman might have been involved could possibly make out a sexual-harassment claim against Letterman, CBS or Letterman’s production company, WorldWide Pants?

For more on that, we called up Marquette University law professor, Workplace Prof blogger, and employment-law expert Paul Secunda.

We asked Secunda if sexual-harassment suits are easier for plaintiffs to make out in situations with large power disparities, like one that might exist when you’re dealing with the likes of David Letterman.

Secunda explained that it can cut both ways — and a plaintiff generally needs more than evidence of 1) a power disparity and 2) a sexual relationship.

In a sexual-harassment case, a fact-finder has to look closely at whether a sexual or romantic advance was, in fact, welcomed by the plaintiff. But, explains Secunda, one can’t judge ‘welcomeness’ by the plaintiff’s actions alone. That is, the plaintiff may engage in a relationship willingly even if she doesn’t want to out of fear of reprisal. And the larger and more powerful the other party, the greater the fear of the consequences, in all likelihood.

At the same time, in many cases, the more powerful the figure, the greater the allure. “He’s a powerful and well-known personality,” says Secunda. “A good deal of prestige can go along with associating with a figure like that.” In other words, an advance from Letterman could elicit a range of emotions, from fear and revulsion to excitement and a sense of opportunity.

But sexual harassment claims are not just about a subjectivity inquiry of unwelcomeness. At the end of the day, says Secunda, the court must also consider an objective inquiry: whether a reasonable person in the plaintiff’s situation would have felt there was an intimidating or hostile environment being created by the supervisor’s actions.