The Complete Guide To Stupid Sexual Harassment Defense Arguments

Illustration for article titled The Complete Guide To Stupid Sexual Harassment Defense Arguments



What kind of dumb things? Well, The Sacramento Bee reports, the Teamsters' lawyer believes the jury's finding "doesn't really mean anything, and that his client is completely exonerated." Oh?

"There is a finding there was some harassing conduct, but they never reached the issue of whether it was severe or pervasive, or whether a reasonable person would have been offended," attorney John C. Provost said. "So none of those issues were really reached."

Whoa, wait: Provost's client won because of a statute of limitations issue. The "11-woman, one-man jury" found that Beauchamp had, in fact, experienced "unwanted harassing conduct" during her employment with the union. Maybe the jurors' decision doesn't mean anything to Provost, but it probably means something to Beauchamp. And that should count for something, right?

The Teamster lawyer's statement is dumb, but it's not the worst one ever made by a defense lawyer in a sexual harassment (or sex discrimination) suit. So, what is? I don't know! But I have found several possibilities. These 14 "defenses," culled from the deepest, darkest corners of Google's archives, don't always win over the hearts and minds of juries, but they do succeed in causing nausea, outrage, and hives. Check 'em out, fragile little ladies:

The Crybaby Defense

 Let's start this off with a bang, shall we? In May 2010, a federal jury in Manhattan found that Novartis, your friendly Swiss drug company, had been discriminating against its saleswomen, and returned a punitive damages award worth $250 million. Though their legal strategy was a total failure, Novartis' lawyers did receive certificates of recognition from the American Bar Association's somewhat marginal Extreme-Douchebag Lawyers' Division for "most outstanding display of doucheytude in a civil trial."


"I've never seen anybody cry so much on the witness stand in my life...She didn't have very much to cry about...It's like she had been knifed. Honestly. What was wrong with this woman? She was so fragile," said lead defense lawyer Richard Schnadig, who sometimes wakes up in the middle of the night to eat mustard-and-kitten sandwiches. Schnadig also called a second witness "that little blond that came up here from Texas" (apparently not everything from Texas is big after all??) and complained that one of the plaintiffs was a "troubled" person whose testimony was "highly emotional" and "ridiculous."

The evening after the verdict was announced, Schnadig went home, put on his Superman PJs, curled up on his sofa under his favorite blankie, and wept like his career had been knifed (probably).


The Nuts and Sluts Defense

 Susan Estrich, a political science and law professor at the University of Southern California, uses this term to describe what she calls "one of the oldest tactics in the book": questioning a woman's mental state to make her seem unstable, and using her sexual history to undermine her moral character. It's used quite often by defense lawyers in sexual harassment and discrimination suits, but is also popular in criminal trials—for example, the mid-aughts sexual assault case of basketball player Kobe Bryant. Bryant's lawyers demanded to see his accuser's mental health records, and also suggested that she'd been promiscuous; New York Newsday writer Lorraine Dusky went so far as to describe their invasive info-seeking as "amoral antics," singling out lawyer Pamela Mackey with particular scorn. (Charges against Bryant were dropped when his accuser declined to participate in the trial; the two parties eventually reached a settlement.)


The "Not a Slut, Let's Go With Nut" Defense

 A lawyer for Merrill Lynch tried to discredit sex discrimination plaintiff Nancy Thomas by characterizing her as "hard to get along with," resistant to performing clerical anything, and afflicted with a "personality disorder." Thomas's case had "nothing to do with discrimination, harassment or retaliation,'' he argued, downplaying just a bit that she'd had an "obscene photo dropped at her desk; a dildo and lubricating cream left for her in the mailroom; and [witnessed] an office incident in which a male broker allegedly pulled down the underwear of a Merrill woman." Just fun and games! No, Thomas's problem was a broken marriage engagement from long ago that "haunted her for the rest of her career and the rest of her life." She was haunted! Like a haunted house, in a way. But instead of being full of ghosts, her life was full of balled up tissues (which slightly resembled ghosts, in a way).


The jury didn't believe that Nancy Thomas was a haunted house, and awarded her a $420,000 settlement.

The Icy Bitch Defense

 After several years of enduring her supervisor's unwanted date proposals, touching, and other skeezy gestures of "affection," Tera White—a sergeant with the Los Angeles County Sheriff's Office—sued the county and the supervisor for sexual harassment and won a $211,700 settlement. During the trial, the supervisor's lawyer complained that at first White had been friendly to her touchy-feely boss, but later became "cold and distant." Yeah, well sometimes when somebody refuses to stop sexually harassing you, your attitude about them changes.


The No-Supply Closet Defense

 Earlier this year, ex-receptionist Jiyeon Byun sued her former boss, Dr. Robert Rho—who specializes in sprucing up ladies' lady-parts to make them more "fashionable"—for sexual harassment after he allegedly demanded hugs and pressured her to take weekend jaunts with him. Rho's lawyer argued that there couldn't possibly have been any sexual harassment whatsoever, no way, no how, because—among other things—"[t]here was no invitation to go to the supply closet." The jury apparently agreed with this rationale, because they cleared the doc. 


The Close Friend Defense

 In 2009, a federal jury in Atlanta awarded $9.2 million in damages to a woman who said her employer's CEO sexually harassed and discriminated against her. The CEO's attorney, who was very concerned about the endangered status of "ladylike behavior" in today's immoral culture, said the plaintiff was "a sexually loose woman who often drank heavily and who was once 'close friends' with [James L. Pefanis, the CEO]." Tip: Ladies, if you want to avoid being sexually harassed then you have to avoid befriending your boss. And cut back on your drinking, you sloshy whores. 


The Juicy Emails Defense

 After a former employee of the Louisiana Alcohol and Tobacco Control Commission sued her boss for sexual harassment, the commissioner's lawyer sought access to personal emails she might have stored on her state computer. Okay, that seems reasonable. However, the lawyer's comment, "I don't know what's in these (personal) e-mails, but I can't wait to see them because they must be good," is downright creepshow. Hopefully the emails contained nothing but recipes for Jell-O desserts, thereby quashing the lawyer's smut fest dreams.


The Self-Absorbed Feminist Defense

 To defend them in former weekend anchor Adele Sammarco's sexual harassment suit, New York 1's parent company, Time Warner, hired lawyer Bettina Plevin—who spent the trial playing Ultimate Mean Girl. Plevin argued that Sammarco's contract wasn't renewed because that happened only "if [an employee] had ability and talent." She also called Sammarco a "chronic complainer" because Sammarco didn't like being paid less than men, the weirdo. Finally, Plevin claimed that Sammarco


had"narcissistic personality disorder", based on ... a Psychology Today listicle she saw once, and at least one email regarding interns that Sammarco wrote using ALL-CAPS (which is weird, don't do that). Sammarco lost her case.

The Nosy Nelly Defense

 Robin Beem, a county government employee from Madison County, Illinois, filed a sexual harassment and discrimination complaint against the county after claiming that she'd been exposed to pornography displayed on a male supervisor's computer and subjected to various other inappropriate things. Oh, but the supervisor never meant for her to see any of that pornography, said the county's lawyer: "He took affirmative steps to ensure that no one else saw such images ... He wiped his drive using special software every night to erase the images." Why did Robin Beem have to be so observant? Really, if she didn't want to see porn at work then she could have worn a blindfold.


The "Silence Equals Consent" Defense

 In 2005, a female deputy filed suit against George McMillan, the former sheriff of Roanoke, Va., after becoming one of his alleged "inappropriate sexual advances" recipients. One of McMillan's attorneys asserted that the female deputy had never protested against McMillan's invitations to sit on his lap and kiss him (an activity that improves crime-fighting by 20%), or leave her boyfriend for him, or any of his other friendly gestures; therefore, she must have consented to all the attention. Oh, and another thing: how come all the other female employees who had complained about McMillan's behavior eventually returned to their jobs, hmmmmm? If the office environment was so unbearably harass-y, wouldn't they have just quit for good? A federal court did not buy these arguments, and in early 2008 Sheriff Santa lost the case.


The "That's Just The Way He Is, Take Him or Leave Him" Defense

 In 2010, the EEOC represented a female doctor who quit her job because of her boss's behavior, which included making a lot of "sexual jokes" to basically everyone—employees, patients, the people who brought the Band-Aids, you name it—and referring to women as cunts and sluts. (He meant it in the nicest, most flattering way.) The boss's lawyer argued that he "was a generally crude person who made vulgar comments to men and women alike"—an example of the so-called "equal opportunity jerk defense," which says that as long as you act gross and weird around both sexes, you aren't being discriminatory. But the Fourth Circuit found that the boss's comments were worse around women, and also involved "explicit or implicit proposals of sexual activity" toward the female doctor who quit, and sent the case for trial.


The Height Defense

 Former New York Knicks executive Anucha Browne Sanders is tall, and therefore savvy enough not to be affected by sexual harassment, argued the defense team for Knicks general manager Isiah Thomas—whom Sanders had sued for $10 million for sexual harassment. "She's a tall woman—with heels on, taller than Isiah Thomas," said defense attorney Kathleen Bogas at the time. The jury didn't really care about Sanders' heel height, and in 2007 a jury found in her favor.


The "Too Ugly" Defense

 When former New York City councilman Allan W. Jennings Jr. was accused of sexually harassing staffers and a Council lawyer, he turned to the classiest, sassiest lawyer he could find: Robert Ellis, who publicly remarked that "some of these [accusers] couldn't attract a howling wolf in the middle of a wilderness." Oh wait, strike that: one of them was "extremely attractive," he clarified, "But the three primary accusers are not attractive at all." Being detail-oriented is an essential lawyer skill.


The Greedy Bored Cheerleader Defense

 Marshall University cheerleader Kacie Chambers sued her school for sexual harassment and discrimination because of all the gross language and behavior she and her pom poms had witnessed, which led her to quit cheering. Marshall's defense lawyer countered that Chambers was after easy money and wanted to quit cheering to do other things without pissing off her parents. (Women take longer than men to detach from their moms and dads.) Chambers lost on the harassment and discrimination claims, but won $25,000 in damages for negligent infliction of emotional distress.


Image by Cole Weathers.


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One of my favorites, always from women (and very much on display in comments on the Anthony Weiner posts): "That happened to me and I didn't mind it/liked it, therefore it can't be sexual harassment!" It usually goes hand-in-hand (also seen in the Weiner threads) with claiming it can't count as sexual harassment if the victim doesn't act traumatized enough.