posted on Wednesday, October 11, 2006 9:35 AM
by
Lou Michels
Christmas in October?
An arbitrator recently awarded $1.1 million to a secretary employed on the executive floor of Larry Flynt Productions. $750,000 of the award was in punitive damages. The claim was that the secretary was victimized by a sexually hostile working environment because Flynt would sometimes be entertained by prostitutes in his office. The secretary claimed to be offended by the loud sexual noises which would emanate from the office, having to relocate business meetings to avoid the embarrassment, having to participate in stalling Flynt's wife if she visited while the nasty business was being transacted and finally having to go to petty cash to get money to pay for the prostitutes.
While the conduct is beyond the pale of reasonable, it is hard to see how it could legitimately be found to constitute sex discrimination or harassment. Most reasonable people -- male, female, transgendered, gender identity disordered, confused or androgynous -- would likely find the behavior equally offensive. None of the conduct was directed at the plaintiff, nor can it reasonably be argued that it would have made her workplace any more uncomfortable than that of male employees exposed to the same conditions. Since Larry and his lawyers won on their motion to compel arbitration, they will likely be stuck with the award without any meaningful review of these issues.
In addition to a question of the efficacy of arbitration, the case raises other serious questions. Would the arbitrator have found an environment that was discriminatory to women if the prostitutes had been male? Should Flynt consider a counterclaim under disability law, claiming that having prostitutes in his office was a necessary accommodation to his mobility impairments, since unlike innumerable show biz luminaries he can't cruise the appropriate streets of L.A.?
My thanks to Bob Zielinski for this note.