As legal commentator Ted Frank observes, the $11.6 million in damages awarded in the Isiah Thomas sexual harassment case was excessive and at odds with the Supreme Court’s rule that punitive damages should not exceed compensatory damages by a large ratio.
Lucky for the plaintiff, the case is in New York, whose courts are more pro-plaintiff than the Supreme Court. But even there, the sheer size of the award may raise eyebrows. Plaintiff Anucha Browne Sanders wouldn’t have gotten that much money if she had suffered a far worse, but less politically incorrect, injury on the job.
If your employer behaves recklessly in a way that costs you a limb or an eye, you won’t get $11 million. Plaintiff Sanders didn’t lose a body part, although it sounds like she lost some peace of mind, and was subject to nasty name calling and advances.
One of the ironies in this case was Isiah Thomas’s distasteful attempt in his deposition to suggest that any name-calling that occurred (such as calling the plaintiff a “bitch”) was less offensive if it occurred between black people (he and the plaintiff are black) than among people in general.
This offended some feminist commentators. But ironically enough, Thomas’s demand for special treatment based on race was a logical outgrowth of feminist definitions of sexual harassment, backed by liberal judges, which needlessly focus on the gender and race of the accuser and the accused.
The more conservative federal appeals courts, which believe in a single standard for everyone, have held in cases such as Watkins v. Bowden (1997) that sexual harassment claims should be judged by a neutral “reasonable” person standard. Judge Edith Jones made this argument most forcefully in her decision in DeAngelis v. El Paso Municipal Police Officers Association (5th Cir. 1995), which also noted that some sexual harassment claims were in tension with the First Amendment. (The DeAngelis case involved an unsuccessful suit against a union because one of the columnists in its newsletter was a male chauvinist).
Liberal courts, however, have rejected this equality-based single standard, arguing that to decide whether conduct rises to the level of harassment, one must consider the characteristics of the plaintiff — and, implicitly, the defendant — such as their gender, race, and sexual orientation. The leading case so holding was Ellison v. Brady (9th Cir. 1991), which held that a female employee could sue over nothing more a couple of mildly offensive love letters from an odd co-worker, reasoning that although a reasonable man would find the letters trivial, a reasonable woman would find them terrifying (many commentators, including the female co-author of a leading sexual harassment treatise, have found the court’s reasoning and conclusion to be silly and rooted in romantic paternalism). (The judge who joined in this 2-to-1 ruling later explained to me that the case really turned not just on the plaintiff’s gender, but also on the accuseds).
The Second Circuit Court of Appeals, in New York, has sent conflicting signals on this issue. In Richardson v. New York State Department of Correctional Services (2nd Cir. 1999), Judge Meskill, a GOP appointee, prophetically rejected the “reasonable woman” and “reasonable African-American” standard for sexual harassment claims, noting that doing so would open the door to reliance on unsavory race-based stereotypes about acceptable behavior.
But in subsequent cases, his more liberal colleagues on the Second Circuit Court of Appeals have suggested that they agree with a “reasonable woman” or “reasonable African-American” standard for sexual harassment claims, opening the door to Isiah Thomas’s distasteful suggestion that he should be given more license to engage in sexual name-calling because of his race and the plaintiff’s race.
On another note, New York Times columnist Selena Roberts, who smeared the Duke lacrosse defendants even after their innocence became obvious, and turned a blind eye to the misconduct of prosecutor Michael Nifong, seems to be ecstatic about the Isiah Thomas verdict, describing the case in Manichean terms.
She and her colleague in the New York Times’ sports page, Duff Wilson, deserve a Walter Duranty award for their shoddy and misleading reporting about the Duke lacrosse case. Walter Duranty was the notorious New York Times reporter who covered up the artificial Ukrainian famine of the 1930s, which communist dictator Stalin used to starve to death millions of his own people. Duranty falsely depicted the famine-ridden countryside as prosperous and well-fed, while covertly receiving lucrative gifts from the Soviet government. But he was celebrated by the Times and got a Pulitzer Prize for his misleading reporting.