Liability, Sexual Harassment, and Why "Cancel Culture" isn't the why Jeffrey Toobin Got Fired
By now, if you pay any attention to popular culture or media news you probably heard about Jeffrey Toobin, blogger, New Yorker Columnist, CNN talking head, and now disgrace to my industry taking time off to "deal with some personal things, after masturbating on a work conference call over Zoom while simulating a debate for the New Yorker. (The idea that the New Yorker was simulating a Presidential debate on Zoom is my favorite part of this story--why would they do that?)
Myriad people--mostly men--are defending Toobin, blaming "cancel culture" for the fact that he has no job any longer, at least one I've read has asked, "Who hasn't played with themself on a work conference call?" I can honestly say that I haven't, and if you're my client and you told me you were doing that. I would tell you that was sexual harassment, and you need to stop before someone finds out and you get so sued that your head spins like an old Star Wars Action Figure (besides Chewbacca or one with a hard plastic collar).
Reasonable people do not masturbate in front of others without expressed permission. This is doubly true during work meetings.
Yes, the news says that he left by choice. He didn't. He did what's known among employment lawyers as "resignation in lieu of termination," and, while the New Yorker says that he may be welcomed back, if they're at all intelligent, they will never do so. Because hiring him to so much as lick envelopes is inviting a sexual harassment lawsuit. In fact and this is what you need to think about here, at this point, any employer in the world, hiring him to do anything is inviting a sexual harassment lawsuit.
The legal standard for sexual harassment is "Extreme or Pervasive Unwanted conduct." I capitalized all the words I intend to explain, because I'm presuming you all know what "conduct" is. Now, Unwanted can, but doesn't always require an expression of lack of consent. Behavior that reasonable persons engage in in the outside world is permitted until consent is withdrawn. I can ask a co-worker out, but if the co-worker says no, or, I can't keep asking, nor can I attempt to cajole, convince, threaten, etc. the co-worker to change their mind. If I know a co-worker is married, attempting to ask them out once, may well be unacceptable, because it is not reasonable to ask out a person who is married. Other behavior requires express consent before you can attempt it. I can't, for example, take off my pants in front of a co-worker without asking them first or without telling them, "hey, I'm about to take off my pants, don't get weird, I'm wearing my gym shorts under them and am going to the gym on the corner during lunch." Because normal people tell people before they "drop trow." Reasonable people do not masturbate in front of others without expressed permission. This is doubly true during work meetings. The fact that this was a "mistake" is irrelevant.
Because the New Yorker (and every other one of Toobin's employers), presumably, had no idea that Toobin engaged in such behaviors, means that the New Yorker isn't necessarily liable for his behavior (though Toobin personally, most likely is), if they had reason to think he might engage in any sort of sexual misconduct, they would be liable. Suffice it to say, right now, the New Yorker, by which I mean every employer on earth, is well aware that Toobin might engage is sexual misconduct. So, if anyone comes forward in the future with a sexual harassment or misconduct claim, the New Yorker is likely liable for damages: financial, general, and quite possibly punitive. And if it comes out that anyone in the past ever accused Toobin of harassment and the New Yorker didn't do something about it, it's very possible that a whole lot of people will lose their favorite weekly fish wrapper. (Full disclosure: I can't stand the New Yorker, and once wrote a blog post under a pseudonym condemning one of their film critics).
Toobin is likely personally liable for all those damages (maybe not punitive if he really didn't know his camera was on), to everyone in the meeting anyway. Toobin may have some sort of defense if he has some kind of mental or emotional issue or defect, but is likely liable for some amount of damages regardless. If he was aware of a defect affecting his conduct, he should have been either watching his behavior, in treatment, or sequestering himself.
This isn't about cancel culture. This is about liability.
It is possible that he might be employable at some point in the future if he can blame his conduct on some sort of issue, disease, or defect, seeks treatment for an extended period, remains in treatment, and shows no issues for an extended period. Even then, I would advise my client that he had to sign an agreement indemnifying them against such a suit, and provide a bond to pay for legal services in such a circumstance. I may also require that the bond be forfeit if he is fired or resigns pending termination for reasons related to accusation of sexual misconduct or harahssment, and that he signed something acknowledging our "zero tolerance policy." All those would be necessary to make clear that we believed that he was likely safe, but wanted to make sure that he believed he was, and so provided as many reasons to give him pause as possible. I stay may because such extreme measures suggest that we hired him with concerns that he would do so again, and if you're concerned about such risk you shouldn't hire him to begin with.
Amelioration of risk can be a double-edged sword. Hence, probably safer for Jeffrey Toobin to have no job at all. This isn't about cancel culture. This is about liability.
This may be a good time to take a look at your sexual harassment training status, policies, compliance, and culture. Call us to set up a consultation.