The Rules Change When You Get to the Office

It is becoming quite the challenge to keep up with who is the latest person to be accused of sexual impropriety in the workplace.  Steve Edwards of Good Day L.A., my preferred local morning news program was "abruptly let go" this past Monday.  There are reports his dismissal involved allegations of sexual harassment.  We'll get back to Steve in a minute.  Then we learned that Tavis Smiley was suspended from the nightly talk show he hosts for PBS.  This is the statement released by PBS:

“Effective today, PBS has indefinitely suspended distribution of ‘Tavis Smiley,’ produced by TS Media, an independent production company,” the public broadcaster said. “PBS engaged an outside law firm to conduct an investigation immediately after learning of troubling allegations regarding Mr. Smiley. This investigation included interviews with witnesses as well as with Mr. Smiley. The inquiry uncovered multiple, credible allegations of conduct that is inconsistent with the values and standards of PBS, and the totality of this information led to today’s decision.”

Mr. Smiley posted a video statement to Facebook in response to his suspension, which you can view here.  The text of the post follows:

"On the eve of the 15th season and 3,000th episode of my nightly talk show, I was as shocked as anyone else by PBS’ announcement today. Variety knew before I did.

I have the utmost respect for women and celebrate the courage of those who have come forth to tell their truth. To be clear, I have never groped, coerced, or exposed myself inappropriately to any workplace colleague in my entire broadcast career, covering 6 networks over 30 years.

Never. Ever. Never.

PBS launched a so-called investigation of me without ever informing me. I learned of the investigation when former staffers started contacting me to share the uncomfortable experience of receiving a phone call from a stranger asking whether, I had ever done anything to make them uncomfortable, and if they could provide other names of persons to call. After 14 seasons, that’s how I learned of this inquiry, from the streets.

Only after being threatened with a lawsuit, did PBS investigators reluctantly agree to interview me for three hours.

If having a consensual relationship with a colleague years ago is the stuff that leads to this kind of public humiliation and personal destruction, heaven help us. The PBS investigators refused to review any of my personal documentation, refused to provide me the names of any accusers, refused to speak to my current staff, and refused to provide me any semblance of due process to defend myself against allegations from unknown sources. Their mind was made up. Almost immediately following the meeting, this story broke in Variety as an “exclusive.” Indeed, I learned more about these allegations reading the Variety story than the PBS investigator shared with me, the accused, in our 3 hour face to face meeting.

My attorneys were sent a formal letter invoking a contractual provision to not distribute my programming, and that was it.

Put simply, PBS overreacted and conducted a biased and sloppy investigation, which led to a rush to judgment, and trampling on a reputation that I have spent an entire lifetime trying to establish.

This has gone too far. And, I, for one, intend to fight back.

It’s time for a real conversation in America, so men and women know how to engage in the workplace. I look forward to actively participating in that conversation."

Let's focus on the bolded text.  The key word being "colleague."  When you're the boss, you may consider the people you work with to be your colleagues but in fact, they are your subordinates.  A supervisor should never have a "consensual relationship" with a subordinate that goes anywhere beyond a platonic friendship.  The potential problems are endless.

It isn't just about the possibility that there will be retaliation from the boss if the relationship ends badly.  Other subordinates may perceive favoritism in the workplace, even if it is nothing more than appearance.  If the supervisor promotes their paramour, was it truly merit-based?  Even then, will it be seen that way by others who were passed over?  This is just one set of potential problems.

When I was in the Air Force, it was prohibited for someone to pursue that kind of relationship with a subordinate.  I remember returning from my tour of duty in South Korea to a position where I'd be supervising more people than I had to that point in my career.  Nine people who where either direct reports, or who worked for my direct reports.  I made it a point to keep my personal and professional lives separate.

* * *

Newt Gingrich spoke about Al Franken was being treated by his Democratic brethren.

"He's never faced his accusers, he's never had due process, he's never had an opportunity to clear his name.  The social pressure of the left wing of the Democratic Party came together and made it inappropriate for him to stay.  A million people elected him and 30 people decided he was inappropriate.  This is purely and simply hysteria!"

We are entitled to due process in the criminal justice system.  The presumption of innocence in the courts is codified in our Constitution.  In private sector employment, there may or may not be due process when someone is accused of sexual impropriety.  PBS claims to have investigated the allegations against Mr. Smiley although he is questioning that investigation's thoroughness in the wake of their refusal to review his "documentation."  

At-will employment is a legal doctrine that allows employers and/or employees to end the employment relationship at any time for any reason, when an employment contract was not agreed to by the parties.  There are three major exceptions to this doctrine.

The Public Policy exception.  Where the termination of employment would violate the public policy doctrine of the state, or be done in violation of federal or state law.  All but 8 states recognize this exception.  

The Implied Contract exception.  Under the implied contract exception, an employer may not fire an employee "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists."  14 of the 50 states do not recognize this exception.

The Covenant of Good Faith exception.  This one is not quite as specifically defined.  Only 11 states recognize this exception, probably for that reason.

Senator Franken was entitled to due process.  He could have chosen to allow the investigation of the Senate Ethics Committee.  He chose to give up his right to due process.  Probably to allow Democrats to try to seize the moral high ground in this area.  When a president defends and endorses an accused pedophile in a special election, Republicans were giving up that position.  When people are calling on that president to resign because of the nearly two-dozen allegations against him involving sexual impropriety, something is rotten in Washington, D.C.

* * *

We see the supervisor/subordinate romantic relationship in the media all the time.  On the original "Law & Order" there was a character named "Jack McCoy."  Played by Sam Waterston, he was an Executive Assistant District Attorney (ADA) and we learned that he was sexually involved with more than two of the female ADAs who he supervised.  

Before that on one of my favorite shows of all-time, "L.A. Law" we were introduced to Corbin Bersen's "Arnie Becker."  He was a partner in the fictional law firm portrayed on the show.  He had sexual relationships with associate attorneys, summer intern attorneys, and at least two of the secretaries who worked for him.  That's aside from the massive number of his female clients he bedded.  

I'm writing this as I binge-watch the first season of "Grey's Anatomy" on cable.  Attending physicians bedding interns, residents and the occasional patient.  Residents bedding interns.  The same crap went on for most of the 15 seasons of "ER."

This is how the media shows us the supervisor/subordinate relationship.  Art is not truly imitating life in these instances.  I also happened to notice a breaking news item while I was writing this.  Variety Magazine has an "exclusive" report where three more women have come forward and accused Dustin Hoffman, one claiming he exposed himself to her when she was a 16 year old classmate of his own daughter, Karina.   The other two are alleging the 80 year old multiple Oscar winner of having sexually assaulted him.

Will the ever accelerating parade of allegations and accusations ever begin to slow?  Yes.  Will it ever end completely?  Not until we all say that we as a society, will not tolerate this.

Oh yes, we never finished with Steve Edwards.  I've been a fan of his for over four decades.  I've always thought of him as one of the truly nice guys in his business.  The majority of his former co-workers at Fox 11 News have posted messages of support for him.  Pointing out he was never inappropriate with him.