"Here, You Look Like You Need Some Chocolate"

In late October 1991 I complained to two attorney managers (Dennis M. Race, Esq. and Malcolm Lassman) at the law firm of Akin, Gump, Strauss, Hauer & Feld that I was a victim of a hostile work environment. I reported ten incidents of harassment, including the following anecdote as described by the D.C. Department of Human Rights, which instituted a Complaint against the firm in February 1992: Finding of Fact 4(g) -- "Upon Complainant’s return to the office from lunch one afternoon during the summer of 1991, his supervisor, Chris Robertson, offered Complainant a piece of chocolate, and stated to Complainant the peculiar phrase, 'Here, you look like you need some chocolate.'"

The D.C. Department of Human Rights dismissed my complaint of a hostile work environment with the following observation: "[T]his Department does not believe that you cannot make a hostile work environment out of incidents such as an empty baby food jar in a waste basket, an offer of a piece of chocolate, a question to a third person returning from lunch 'are you wet' or the remark of a non Jewish coworker stating 'Oy veh' when entering a staff meeting."

In fact, the literature -- including the legal literature -- recognizes that the use of double entendres (such as the phrase "Here, you look like you need some chocolate") can constitute sexual harassment:

"The scholarly, legal, and training literatures are replete with empirical and anecdotal evidence that sexual harassment can be manifested through indirect language plays. For example, the sexual harassment typology advanced by Gruber (1992) includes a subtle pressures/advances category characterized by verbal requests that are implicit or ambiguous and most clearly identified through analysis of the full context of the interaction. Gruber further describes a verbal request as being goal oriented and seeking sexual or relational intimacy. 'A unique characteristic of this category is that the requests are implied, veiled in humor, or carefully constructed grammatically (e.g., double entendres or innuendos).'" Keyton, J. and Menzie, K. "Sexually Harassing Messages: Decoding Workplace Conversation." Communication Studies, March 1, 2007 quoting Gruber, J.E. (1992). "A Typology of Personal and Environmental Sexual Harassment: Research and Policy Implications for the 1990's".

It's appropriate to quote footnote 9 from my Brief on Appeal at 11, Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998):

"9/ Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint 'baseless as proof of sexual or religious harassment' [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. At least one court (in a foreign jurisdiction), noting that 'sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle,' has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff's work environment and the sexual connotations of seemingly trivial events. Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986)."

Oddly enough, it was none other than the expert J.E. Gruber who had testified in the Eide v. Kelsey-Hayes trial.