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VOL. CLXXIV – NO.

6 – INDEX 495 NOVEMBER 10, 2003 ESTABLISHED 1878

Commentary
Schwarzenegger’s Lesson for Lawyers
By Michael Homans evaluate our presumptions about how laws have their limit and do not create a
the public — more pointedly, jurors ‚— “general civility code” for America. Not
hat does it teach us in terms of will react to claims of sexual harass- every sexual advance or workplace joke

W public attitudes about equal


rights and sexual harassment
laws that Californians elected Arnold
ment and other wrongdoing. Each case
presents a new opportunity to stretch or
restrict the law of sexual harassment.
warrants a federal lawsuit. Isolated inci-
dents of horseplay and coarse com-
ments — especially when they result in
Schwarzenegger governor, despite alle- The new reality is that many people no change in job status or tangible harm
gations that he was a serial offender have become dubious and blasé about to the victim — generally are not suffi-
who had groped and harassed least 15 such claims— thanks in large part to 20 cient to warrant liability or punishment
women during the past 25 years? years of national exposure to sexual under the antidiscrimination laws.
Evidence of repeat offenses and harassment cases, from Justice Clarence Looking to the specifics of the
uncorrected behavior is the grist of run- Thomas to Sen. Bob Packwood to Schwarzenegger experience, it also
away jury verdicts, life sentences and offers us lessons on how to handle
harsh punitive damage awards. It’s one claims of misconduct, both as advocates
thing to make a single mistake; that can and as employers.
be forgiven. But 15-plus episodes of
alleged sexual harassment show a dis-
We need to constantly re-evaluate Schwarzenegger was quick to note
that many of the alleged incidents
turbing pattern of intentional miscon- occurred on “rowdy movie sets,” where
duct and a real problem dealing with our presumptions about how we presume the standard of conduct to
women. be a bit looser and wilder than that
So, what do we do with the fact that jurors will react to claims found in a white-collar office environ-
half of California voters gave a collec- ment. The Supreme Court has noted this
tive shrug and “get over it” response to
Schwarzenegger’s boorish behavior and
of sexual harassment distinction, too, with Justice Antonin
Scalia pointing out in Oncale that a pro-
elected him governor? It is tempting to fessional football player does not have a
snicker and dismiss this as wacky and other wrongdoing. sexual harassment claim “if the coach
California politics, and smacks him on the buttocks as he heads
Schwarzenegger’s overpowering onto the field — even if that same
“Terminator” persona (or as David behavior would reasonably be experi-
Letterman now calls him, the “Grope- President Bill Clinton. Once we shake enced as abusive by the coach’s secre-
inator”). Yet, there is more to it than our prejudices and presumptions, we tary (male or female) back at the
that. can look with fresh eyes — like jurors office.”
The real lesson for lawyers (espe- — at the facts of each case, and evalu-
cially employment lawyers, but others, ate it carefully under the contours of the Stale Complaints Lose Their Force
too) is that we need to constantly re- law, including potential defenses.
Recent case law, in fact, is consis- Another key issue in sexual harass-
Homans, counsel with tent in some ways with the public’s ment claims is whether the victim came
Flaster/Greenberg P.C. of Cherry Hill, reaction to the Schwarzenegger case. In forward and reported the alleged harass-
represents employers and employees in Oncale v. Sundowner Offshore Services ment at the time it occurred. The
employment and labor law, including sex- Inc., 118 S. Ct. 998 (1998), the Supreme Supreme Court has established an affir-
ual harassment matters. Court reiterated that sexual harassment mative defense to sexual harassment for

This article is reprinted with permission from the NOVEMBER 10, 2003 issue of the New Jersey Law Journal. ©2003 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.
2 NEW JERSEY LAW JOURNAL, NOVEMBER 10, 2003 174 N.J.L.J. 495

employers when there is no tangible forward, decades after the incidents apologized for any offense he had
employment action. The two elements alleged. It’s a good point, and it under- caused: “I have behaved badly some-
of this defense are: “(a) that the employ- mines the credibility of any alleged vic- times … but now I recognize that I
er exercised reasonable care to prevent tim. offended people. Those people that I
and correct promptly any sexually offended, I want to say to them I am
harassing behavior, and (b) that the Mea Culpa deeply sorry about that and I apologize
plaintiff employee unreasonably failed …”
to take advantage of any preventive or Finally, Schwarzenegger’s reaction A simple, straightforward apology
corrective opportunities provided by the to the allegations was a model for for misconduct short of sexual harass-
employer or to avoid harm otherwise.” employers and their lawyers — who are ment can work wonders in avoiding lit-
Faragher v. City of Boca Raton, 118 S. often faced with responding to sexual igation. Unfortunately, many employers
Ct. 2275, (1999). harassment claims that have a mix of and harassers trap themselves in false
Consistent with this defense, truth and fiction. Schwarzenegger denied denials and pretextual cover-ups. Such
observers in California questioned why many of the incidents, but promptly tactics can antagonize the victim, ruin
Schwarzenegger’s alleged victims wait- admitted some misconduct (over the even a good defense and lead to huge
ed until the eve of the election to come objection of his political advisers) and damage awards. ■