Okay, but first I need clarification. You asked:


Are we assuming that none of the other stuff happened and that the extent of his transgressions amounts to six leg touches, or are all of the allegations at play in our analysis? I only ask because in your previous post, you presented me with just that hypothetical.

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

Really? I'll agree that Vitus is arguing an extreme and highly unlikely scenario, but history and context do matter. And it's not difficult to come up with a scenario, albeit highly unlikely, where that conduct isn't harassment. //

For example, what if the week before she gave him a rubber vagina with a funny note attached to it?? Do they both now go down together(not literally) , or is it now just an office prank among co workers??

No, it doesn't say that. There are many reasons a dismissal may occur. The right to sue letter typically includes a check box indicating why the charge was dismissed and then recites the boiler plate language telling the person they have a right to bring a lawsuit within 90 days of the date the letter is received.

FWIW, even if the EEOC thinks discrimination occurred, the language of the letter doesn't say that. It says essentially that after investigation, the EEOC has determined that there is "cause to believe" that discrimination occurred. The agency itself never actually makes a formalized determination that discrimination did or did not occur.

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

To clarify, there are two types of "right to se" letters.

There is a Dismissal and Notice of Rights, which indicates that the EEOC has not found anything but that the employee can pursue the case in federal court.

There is also a Notice of Determination, where the EEOC has made a determination that there are grounds for the claim, but that the EEOC is not taking up the case, so there is also a corresponding right to sue.

As mentioned above, the EEOC will also issue a right to sue upon request.

In all cases, the employee has exhausted the administrative remedy and can now pursue the case on his or her own. The practical difference is that it may be easier to find an attorney to take the case if a Notice of Determination has been issued than if the case had been dismissed. But that's not always true.

Are we assuming that none of the other stuff happened and that the extent of his transgressions amounts to six leg touches, or are all of the allegations at play in our analysis?

I'm not sure it matters, really. Just because he sexually harassed two or three women does not mean that he harassed every woman he made a pass at.

But for simplicity's sake, let's stick with the hypothetical. It's just the leg touches.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

I completely agree with the first part of your statement and see your point for the second but I think how the company reacted would probably determine whether it survived summary, no?

Consensual conduct is not harassment, even as defined by many employer policies.

But while not harassment, it would probably still be considered unprofessional and inappropriate for the workplace.

Someone else also pointed this out earlier, but what may truly be consensual and welcome conduct can "conveniently" be characterized by one of the parties as unwelcome if the relationship has soured, if there's poor performance review, or in the event of discipline.

That does make it easier.

It actually DOES matter if the other stuff happened. If he sexually harassed 2 or 3 women, the leg touches can be spun a different way. I would agree with anyone at all that each individual leg touch wouldn't give rise to an actionable lawsuit for the woman touched, but taken in aggregation, particularly with evidence that he sexually harassed 2 or 3 other women, I could see a jury taking his employer to task for not reigning him in and allowing him to troll the employee ranks for sexual trysts. There may be no "additional harm," but if you pile up enough instances of harassment, even if they all have different victims, and if you can demonstrate that CBS knew or should've known about them and did nothing, there could definitely be legal liability in favor of one of the leg-touched women for having to be subjected to a sexual advance that could've been easily prevented by enforcement of the employer's anti-harassment policy.

On the contrary, if all you have is a series of six leg touches, each with a different person, I think it becomes harder to establish the severity and pervasiveness necessary to establish a viable legal case. Not saying it's impossible, but likely much harder for a plaintiff to prevail. That said, it might still violate the employer's harassment policy (I'd have to know what it said), and if he has a history of doing these things, something more than just a slap on the wrist (maybe termination?) might be warranted.

On the non-legal front, the leg touching seems pretty creepy to me when taken in isolation. I'd need to know what the banter was before that. When I was still in the dating pool, I would not have physically touched a woman on the leg in order to make a pass. It would have had to start with a lot of flirtation and any "touching" would have been much less intimate until I was damn sure she was interested. I don't know the context of Rose's leg touches, so I can't say if all six were just him getting crossed signals or what. But, the leg touch stuff does strike me as a little beyond just making a pass. Just my initial reaction to it.

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

Typically, to be actionable as a hostile work environment, the conduct has to be severe and pervasive. I've seen cases where actual sexual assault* was considered severe and pervasive, so I have a hard time seeing how a dildo with a note would be.

*employee came up from behind a co-worker, reached around her with both arms and up her blouse, and grabbed her breasts, employee was prosecuted and convicted criminally, yet employer was not liable on summary judgment because the single incident wasn't severe and pervasive.

I can just picture HR people's heads exploding after reading that. Do you know if ge was fired or the outcome of similar situation if not fired?

It actually DOES matter if the other stuff happened. If he sexually harassed 2 or 3 women, the leg touches can be spun a different way.

I'm sure it could be- in a case against CBS, if CBS knew about all of it. But I think it would be mostly spin. I don't think any of the women he just touched on the leg were really victims of sexual harassment.

That said, it might still violate the employer's harassment policy (I'd have to know what it said), and if he has a history of doing these things, something more than just a slap on the wrist (maybe termination?) might be warranted.

That could theoretically be the case, and I'd have no particular problem with that, either. CBS could have a policy in place strictly forbidding romantic/sexual involvement between colleagues- similar to the military's fraternization policy, maybe. It's not a terrible policy, and there are good reasons for it. But it can be violated in a ton of different ways that don't even come close to sexual harassment.


On the non-legal front, the leg touching seems pretty creepy to me when taken in isolation. I'd need to know what the banter was before that. When I was still in the dating pool, I would not have physically touched a woman on the leg in order to make a pass.

Yeah, the context does matter a lot. All I know is that the little I've read about how the women themselves described it, it didn't sound creepy at all. It sounded totally innocuous. Like I said, one of the women said she didn't even realize she was a victim until a decade later. Can I imagine a scenario in which the leg touches were creepy? Sure. But I'm not going to assume that when the women don't describe them that way.

Context, again. I have touched a number of women on the leg in the course of mutual flirting. A number of women have touched me on the leg in the course of flirting. Totally normal, and anyone who says otherwise is a liar. On the other hand, if you just walk up and start stroking some stranger on the thigh, that's probably all the way to assault on the meter.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

He was immediately fired, reported to the police, prosecuted and convicted.

The victim eventually sued the employer for, among other things sexual harassment. The harassment allegation was thrown out on summary judgment.

At least in a hostile environment type case (as opposed to quid pro quo harassment/discrimination), I think there are good reasons to have a "severe and pervasive" requirement before holding an employer liable. And when you think about it, is a one time dildo give w/ a note really so offensive and disturbing that the recipient needs financial compensation?

If it is her superior and he's not fired, yes.