David Letterman rocked the late-night television scene on October 1, 2009, with a long and winding on-air confession about a series of intra-office affairs. He revealed little in the way of detail, except to acknowledge that he has “had sex with women who work for me on this show,” behavior he described as “creepy.” He followed up a few nights later with an apology to his wife, whom he admitted to having “hurt terribly.”

The confession was prompted by the indictment and arrest of Robert Joel Halderman, an Emmy-winning CBS producer, for allegedly blackmailing and extorting Letterman. More specifically, prosecutors say that Halderman asked for two million dollars in exchange for his promise not to sell a screenplay based on Letterman's escapades. Media coverage of the scandal turned quickly from Halderman's conduct to Letterman's. In particular, many asked, did Letterman do anything wrong – and, in particular, anything illegal – by having sex with lots of women in his office?

The term “sexual harassment” has been tossed around in the media during the course of the controversy, including by Halderman's lawyer, who claims to have evidence of it. But, legally speaking, did Letterman's conduct – based on what we know about it thus far – constitute unlawful sexual harassment?

SETTING THE STAGE: THE BASICS OF HARASSMENT LAW

Recall from earlier chapters that sexual harassment can manifest in two forms: quid pro quo and hostile environment. Quid pro quo harassment occurs when a person with supervisory authority takes a tangible employment action (such as demotion or firing) against a subordinate employee who refuses to submit to sexual advances. “Sleep with me or you're fired,” is the classic example here. Hostile work environment harassment occurs when an employee is subjected to unwelcome conduct of a sexual nature that is so severe or so pervasive as to create an objectively hostile, abusive, or offensive working environment. An example with which readers might be familiar occurs in the movie North Country (which is based on a real case) in which female miners face a range of types of abuse from male coworkers and supervisors at the mine.