Chutzpah is "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he's an orphan."
(Dang, Leo Rosten, you were good!)
Well, anyway, that brings us to Mayor Bob Filner of San Diego, California. Home of Ron Burgundy and Veronica Corningstone.
Now that I think about that -- uh-oh.
I almost missed the Filner story because I've been so distracted by Anthony Weiner, poor Huma (yes, I feel sorry for Huma -- wanna make something out of it?), and the innocent and demure Sydney Leathers.
Somewhere in the background I was vaguely aware that some big-city mayor and former Congressman in California had been caught allegedly hitting on just about every woman he's ever met, but I didn't know much about the guy, and California's 3,000 miles away, and out of sight out of mind (just kidding) . . .
. . . until I saw that his attorney told the City of San Diego, which is being sued because of the Mayor's (alleged) shenanigans, that the City (that is, the taxpayers of San Diego) should pay his attorneys' fees because he never got sexual harassment training.
Is this chutzpah, or what? The guy (allegedly) hits on at least eight women over the past few years and has been sued by one, and the poor City has also been dragged into it, even though he's an elected official and they probably didn't even want him didn't hire him, and the City has to pay for his attorney? Shouldn't it be the other way around?
UPDATE: It's now up to nine women, and the ninth is a Marilyn Monroe impersonator!
The City Council has unanimously voted -- twice -- to tell him to pound sand. Good for them.
At the same time, I suspect his lawyer is correct and that the City will get stuck with his tab as well as its own -- either now, or later. Here's why. (Readers from California, please feel free to join the discussion if you think I have this wrong.)
It's that time of year! The American Bar Association is accepting nominations for the 2013 ABA Blawg 100. You don't have to be a lawyer to make a nomination. Just go to the page here and make your nomination, along with a short statement explaining why you think your nominee should win. We very much appreciate the support you've shown to Employment & Labor Insider in the past and would appreciate your vote again this year if you are so inclined. The deadline to submit nominations is next Friday, August 9. Thank you!
1. California law requires that employers conduct harassment training for employees in management positions. Out here in the sticks (most states east of Needles), if you don't provide the training and somebody messes up, you have to suffer the consequences. But if you don't get a harassment claim, then it's pretty much no harm, no foul. (Not that I'm recommending that, of course -- you should have regular harassment training regardless of your location. But you must have it in California, as well as in some other states.) According to the Mayor's lawyer, Filner was scheduled to have harassment training, but the trainer "unilaterally cancelled" the session and never rescheduled it. (Was she female? If so, was she afraid?) This could be a problem for the City.
UPDATE: Now the City says that it was Filner's office who cancelled the training because he was "too busy." Too busy doing what, I wonder? (The blog posts write themselves!)
2. As the Mayor, he is the City. It's sort of like when the CEO of the company is a lecher. Yes, you can take it to the Board of Directors, but it's really tough for a company to escape liability in that kind of situation. Who's gonna squeal on the CEO? What city employee is gonna squeal on the Mayor? The plaintiff, Irene McCormack Jackson, quit her job as Filner's spokeswoman* and then sued, which makes it a little easier. It probably also helps you keep your nerve when Gloria Allred is your attorney.
*Ms. Jackson is still employed by the City, but in a different department.
3. Filner's lawyer, while perhaps not as high-profile as Ms. Allred, deserves his pay from somebody, because he made some really good points in his letter. First, he pointed out that Filner denies the allegations. Always good to keep in mind in a media frenzy. Second, the attorney played on their sympathy. Poor Filner is 70 years old and has never had harassment training in his life. That would have made all the difference in the world! This guy was a United States Congressman for almost 20 years before becoming mayor of San Diego, which explains a lot when you think about it. Third, the attorney pointed out that the city would be strictly (automatically) liable for Filner's harassment if he is found to have harassed. This would not necessarily be the case under Title VII, but it is under the California Fair Employment and Housing Act. Therefore, the attorney said, the city should have a strong interest in making sure Filner had an excellent attorney who was being paid on a regular basis because apparently the only way the City can win is if Filner is cleared. "We all hang together, or we all hang separately," as a randy dude from history once said. (This, in my opinion, was the best argument for telling the City to hold its nose and pay the Mayor's legal fees.)
Individuals get sued in sexual harassment cases all the time. In my experience, it is usually unfair, although I'm sure my friend Donna Ballman will disagree with me. Either the individual had a consensual relationship with the plaintiff, who is now falsely accusing him (could be a "her," but usually it's a "him") of harassment, or the individual is a manager who is being sued because he or she didn't fire the alleged harasser quickly enough to suit the plaintiff. Many times plaintiffs' lawyers add individual defendants to satisfy the personal grudges of their clients, or as a tactic to keep the case out of federal court, or because the plaintiff's lawyer wants a human scapegoat "villain" sitting at the defendant's table at the trial.
In these situations, we almost always recommend that the corporate client be a "united front" with the unlucky individual who has been sued, and that the company pay for the individual defendant's legal fees, as well as 100 percent of any settlement or judgment. (We don't recommend it when the individual is the accused harasser, but many times the company chooses to stand by him as well if they think he's been set up.)
On the other hand, if the individual is an alleged Filner, or if the individual materially violated the harassment policy or training (for example, by sitting on a complaint or retaliating against the victim), we would recommend requiring the individual to get his or her own attorney, and we wouldn't pay. But, since we're not in California, we have a shot at getting the company dismissed from the lawsuit even if the individual is found liable. Apparently they don't have this option in California.
Whether you're in California or not, one of your best ways to prevent sexual harassment claims and defend your company is to have regular, effective training for your employees -- and especially your supervisors and managers. When did you last have your harassment training? Better get it done!
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Kelly McGrath
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- December 2024
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010