The D.C. Dept. of Human Rights determined that the allegations of subtle harassment I made did not constitute sexual harassment under the D.C. Human Rights Act. But cf. n. 9, Brief of Appellant, Freedman v. D.C. Dept. Human Rights: “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)."
The issue of whether the following conduct constitutes a subtle form of job harassment called “mobbing” was never litigated. There is no “anti-mobbing” statute in the District of Columbia. An anti-mobbing bill was introduced in the California state legislature several years ago, but was not enacted. The Second Circuit Court of Appeals has referred to the concept of mobbing.
The D.C. Dept. of Human Rights determined that I was not a victim of harassment in violation of the D.C. Human Rights Act, and adopted as fact Akin Gump's determination that my complaint of harassment was a product of the psychiatric symptom (or "disorder," as termed by the D.C. Court of Appeals), "ideas of reference." Note well: from a technical psychiatric perspective it is questionable whether the following account of workplace incidents can even properly be termed ideas of reference.
* * * *
The D.C. Dept. of Human Rights determined that I was not a victim of harassment in violation of the D.C. Human Rights Act, and adopted as fact Akin Gump's determination that my complaint of harassment was a product of the psychiatric symptom (or "disorder," as termed by the D.C. Court of Appeals), "ideas of reference." Note well: from a technical psychiatric perspective it is questionable whether the following account of workplace incidents can even properly be termed ideas of reference.
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January 14, 1992
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
Ms. Margie Adams
Equal Opportunity Specialist
District of Columbia Department of
Human Rights and Minority Business Development
2000 14th Street, NW, Third Floor
Washington, DC 20009
Dear Ms. Adams:
Per your request at our meeting on Thursday January 9, 1992, enclosed Is a more complete statement of incidents of sexual harassment that occurred while I was employed at the law firm of Akin, Gump, Hauer & Feld.
I will attempt to reach you this afternoon, Tuesday January 14, 1992.
Thank you very much.
Sincerely,
Gary Freedman
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HOMOSEXUAL HARASSMENT-SUPERVISORY EMPLOYEE
1. The perception that legal assistant administrator Ms. Sinnott had me typed as a homosexual, and that her interaction with me was guided by that characterization remained with me throughout my employment. Until the spring of 1991 she almost invariably glanced at my genital region when she saw me. On occasion she would lunge her head forward with a shaking motion, scowl, while simultaneously gazing at my genital area, as though she were boring a hole in my crotch. At one point during my legal assistant orientation, in early August 1989, she rose slightly from her chair and glanced at my genital area. I noticed that at a legal assistant happy hour at Stetson’s in early August 1989 Ms. Sinnott went around introducing me to female employees but not any male employees. This perhaps meant nothing, but it forms a curious counterpart to an incident at the firm Christmas party at the Four Seasons Hotel in December 1988. On that occasion the one individual she introduced me to, other than Larry Tanenbaum, her husband, was the husband of legal assistant Jenifer Mesches, whose first name was Craig (see paragraph 5).
[The phrase "This perhaps meant nothing" is from a clinical psychiatric perspective significant. Psychotics generally do not contemplate the possibility that their representations of reality might be wrong; generally psychotics speak with absolute conviction.]
[The feminization of Jews can be a typical feature of antisemitism.]
HOMOSEXUAL HARASSMENT-COWORKERS-POSSIBLE COLLUSION BY SUPERVISORY EMPLOYEE
2. On my second day on the job, on Friday, March 4, 1988, I introduced myself to a male employee outside whose office I was working at a secretary’s work station. I believe the employee was either a legal assistant or staff person, but not an attorney; I do not recall his name.
Shortly after I introduced myself, a group of employees (probably other legal assistants, secretaries, or staff persons--but not attorneys) gathered in the office adjacent to the work station at which I was working. They proceeded to engage in a lively and mildly-sexually suggestive discussion about the size of the male employee’s chest, whether it was hairy or not etc. The discussion continued for about two minutes.
Ms. Sinnott had placed me at that work station at about 9:00 AM that morning.
HOMOSEXUAL INNUENDO--POSSIBLE PARTICIPATION BY SUPERVISORY EMPLOYEE
3. In the Spring of 1988 training materials were prepared and distributed to coders working on the Eastern case. Among other things, the materials listed the names of about 15 20 key Eastern employees. Next to the name of the Eastern employee, Gary Fishman, the preparer included the explanatory note, “Gary sometimes looks like Sally.” The name Gary Fishman was the only name on the list that had such an explanatory note appended to it. I do not know who prepared the materials. During that time frame I was working on Eastern for a supervisory legal assistant, Ms. Lilliam Machado.
[Lilliam Machado, Esq. is now a practicing attorney.]
HOMOSEXUAL HARASSMENT-ASSOCIATE ATTORNEY
4. While walking down a hallway on the second floor, around May 1988, attorney Paul Wageman, who was walking toward me, began to hold a pencil next to his genital area and proceeded to move the pencil up and down next to his genital area.
HOMOSEXUAL HARASSMENT-PARTNER
5. In mid-June 1988, shortly after being hired as a firm temporary employee, I was assigned at private office on the fifth floor. On the first morning on that office space, as I was getting a cup of coffee in an adjacent kitchen area, an attorney, whom I later learned was named David Hardee, said to me, “I smell something sweet in here. Do you smell something sweet in here?” I said, “No.” He repeated “I smell something sweet in here.”
[David Hardee had professional ties to Vernon Jordan. Jordan was on the board of RJR Nabisco, a corporation that Hardee represented as a tax attorney. The head of the firm's tax practice group was Charles Levy whose office was adjacent to that of Bob Strauss. Hardee was active in Democratic Party politics; he attended the 1988 Democratic Party Presidential nominating convention.]
HOMOSEXUAL HARASSMENT-COWORKERS SUPERVISORY EMPLOYEES
6. Shortly after I was moved to the sixth floor office space shared with Stacey Schaar and Gwen Lesh, on March 20, 1989, there began repeated references, especially by Ms. Schaar, to my friendship with Craig Dye, with whom I had worked at the law firm of Hogan & Hartson. The references centered on a supposedly homosexual interest I had in Craig. Apparently, some time in March 1989 an Akin Gump employee had had some contact with an employee or employees at Hogan, and information obtained from these communications was used to harass me at Akin Gump. From late March 1989 until my termination on October 29, 1991, the harassing homosexual references to Craig continued interminably. These references were used by various Akin Gump employees, including litigation support administrator, Chris Robertson, a supervisory employee.
HOMOSEXUAL HARASSMENT-COWORKERS
7. During my first few weeks in office space on the sixth floor in the early spring of 1989 legal assistants Gwen Lesh, Stacey Schaar, and Adrianne Clarke Schmidt would gather each day for lunch at noon. Their conversations were often sexual in nature, and would often feature details that seemed to derive front my personal life expressed in the form of double entendres.
HOMOSEXUAL HARASSMENT-COWORKERS
8. On the morning of Friday Match 31, 1989, I had a brief conversation with legal assistant Stacey Schaar. Shortly thereafter, Ms. Schaar telephoned someone at the firm concerning an item of “unidentified mail” listed in the firm newsletter. I indicated to Ms. Schaar that the phrase “unidentified mail” could also be interpreted as “unidentified male.” A while after my interaction with Ms. Schaar, Ms. Adrianne Clarke Schmidt stopped by the office and, as she walked past my desk, said in a loud, vehement tone of voice, “that bitch!”
HOMOSEXUAL HARASSMENT SUPERVISORY EMPLOYEE
9. Late in the afternoon of Friday March 31, 1989, Ms. Kathleen Winslow stopped by the office to talk to me. The conversation consisted of a non-stop discourse by Ms. Winslow about my gray hair and how its condition could be remedied with some hair dye. She also talked about my skin, and how, fortunately, I didn’t have any wrinkles yet. But if I did develop wrinkles, I could undergo cosmetic surgery. I had the impression that someone had coached Ms. Winslow to harass me, since her behavior for out of character. In that time frame I was working for Ms. Winslow, who was a legal assistant working in a quasi-supervisory capacity. Ms. Winslow prepared a job evaluation for me dated May 1989.
[In late December 1986--around the time of my 33rd birthday (I was feeling old)--I died my hair. My coworkers at Hogan & Hartson saw this as evidence that I was trying to appear younger to sexually attract Craig Dye. In early 1987 (while I worked at Hogan), someone spread a false rumor that I had attended a tanning salon to look pretty for Craig. I have never been to a tanning salon.]
HOMOSEXUAL HARASSMENT-CONFIRMATION OF RUMOR
10. At the “All-Attorneys Dinner” held at the Westin Hotel on the evening of May 3, 1989, I asked a fellow legal assistant, Jesse Raben whether he had heard the rumor about me at the firm. He responded, “You mean the rumor that you’re a homosexual? Yes, I heard about that.”
I told a friend, Craig Dye, about the above incident during lunch on September 18, 1990.
HOMOSEXUAL INNUENDO-COWORKERS-DISTRIBUTION OF OFFENSIVE MATERIALS
11. One day during the summer of 1989, while working in office space shared with legal assistants Stacey Schaar and Gwen Lesh, Ms. Lesh had a vivid telephone conversation with her brother about a sexual encounter he had had the previous evening with a female. She said, among other things, “You used a rubber, didn’t you? You used a rubber, I hope.” Shortly after this telephone conversation, Stacey Schaar arrived in the office with Xerox copies of a newspaper article about a homosexual encounter that had allegedly occurred between an attorney in the firm’s Dallas office and a male prostitute. Ms. Schaar proceeded top distribute a copy of the article to me and others in private offices in the vicinity.
[Stacey Schaar was terminated for gross misconduct in May 1990.]
HOMOSEXUAL HARASSMENT-SUPERVISORY EMPLOYEE
12. The one occasion I was called for an assignment by J.D. Neary, to the best of my recollection, was also the only time I was requested to cite check a brief. I believe this was Friday July 28, 1989, shortly after management had decided to grant me full time status, which was to begin in early August 1989. I met with J.D. and Stacey Schaar in J.D.’s office on the morning of July 28, 1989 at which time he gave us portions of a Craig Hall/RICO matter brief, prepared by attorney Ms. Merrill Spiegel. The unusual assignment to cite check a “Craig Hall” brief may have been a reference to my friend Craig Dye (see paragraph 5).
HOMOSEXUAL HARASSMENT-COWORKERS
13. Beginning some time in September 1989 co-workers began to use the name "Chris” with unusual frequency in conversations with me. On October 14, 1989 I moved to office space on the ninth floor, and introduced myself to another legal assistant who was also moving into that office space that day. He introduced himself as Chris Montague. I later learned that Chris Montague had been hired in September 1989 at about the same time co-workers seemed to begin using the name “Chris” with unusual frequency in conversations with me. Chris was a very good-looking, athletic male in his early 20’s.
[Chris Montague, originally from Billings, Montana, was a roommate of Jesse Raben's for a time.]
HOMOSEXUAL HARASSMENT-PARTNER
14. During the firm Christmas party on December 14, 1989, at the Westin Hotel, while I was talking to legal assistants Chris Montague and Gary Zanfagna, attorney Larry Tanenbaum glanced at my genital area. Mr. Tanenbaum was the husband of Ms. Maggie Sinnott, a supervisory employee.
Some time during the summer of 1990 while riding in an elevator, as Mr. Tanenbaum spoke with legal assistant Stacey Papa about playing softball “with the guys,” he glanced at my genital area.
Around 5:30 PM on about August 1, 1990 Mr. Tanenbaum started to whistle at me as he entered the elevator in which I was riding. This incident occurred just shortly after I asked summer research assistant, Matthew Erskine to lunch.
[Matthew Erskine was a University of Virginia student at the time; he later earned a graduate degree at Harvard.]
[Gary Zanfagna, Esq. is now an attorney. He was a close friend of Jesse Raben's; Raben and Zanfagna took a trip around the world after leaving Akin Gump and before starting law school in the fall of 1990.]
HOMOSEXUAL INNUENDO-ITEMS LEFT ON DESK
15. Some time in 1990 two apparently related incidents, perpetrated anonymously, occurred while I was working on the ninth floor. One morning upon arriving at work, I noticed that someone had placed a brochure on my desk for a secretarial training course. The brochure was pink in color and featured photographs of women only.
On another occasion someone had placed a Levi-Strauss catalogue on my desk. The front cover of the catalogue depicted a young woman holding a little boy.
[Charles Levy was the name of the head of the firm's tax practice group; his office on the third floor was adjacent to that of Bob Strauss. David Hardee was a tax partner. See paragraph 5, above.]
SEXUAL HARASSMENT/CHARACTER-SUPERVISORY EMPLOYEE
16. Same time around late September or October 1990, Chris Robertson , while handing me some folders containing documents relating to the client National Football League (NFL), pulled the folders back towards herself in such a way that, as I was reaching for them, I touched her breasts. The incident occurred in the terrace level adjacent to the receptionist’s desk.
[The documents in question concerned trademark litigation involving the client National Football League, a client represented by Tanenbaum. The incident occurred a day or two before I was scheduled to visit my sister and her family in New Jersey. I formed the belief at that time, and continue to believe, that Robertson intended that the transaction serve as an ego-bolstering maneuver, overdetermined in nature and consistent with certain predicate thinking. I believe that the content of the documents Robertson handed to me (relating to the "masculine" sport of football) was insidiously related to her act of having me touch her breast. I believe that Robertson was trying to bolster my sense of masculinity so that I would gain the assurance to make frank comments to my family about my perceptions of coworkers, without fear of reprisal; or, perhaps, take more days off from work than I had originally requested. In terms of predicate thinking I applied the following formula: football = touching female breast = masculinity = absence of castration fears = ability to talk frankly without fear of reprisal or job termination = engage in other risky behavior that might endanger job security (such as taking time off from work). Contrariwise, we have the following formulation: homosexuality = castration fears = job insecurity = fear of job termination = strict adherence to rules (cf. Orthodox Jews) out of fear of being seen and punished = fear of taking risks. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993). Robertson reportedly told her employees, in the period immediately following my job termination, that she was afraid I might return to the firm’s premises to kill her.]
HOMOSEXUAL HARASSMENT-COWORKERS
17. While working in the terrace level during the Spring and Summer of 1991 there were interminable references by co-workers that I interpreted as relating to my friend Craig Dye, such as, “I could just die,” “golden boy’ [Craig has light-colored hair], etc.
HOMOSEXUAL HARASSMENT-SUPERVISORY EMPLOYEE
18. Some time in April 1991, when the weather got warmer, I started to sit at DuPont Circle at lunch and read the newspaper or just relax. One afternoon upon my return t the office from lunch, after a day or so of my new springtime lunch routine at DuPont Circle, as I was seated at my desk, my supervisor, Chris Robertson, said in a loud tone of voice to another employee, nearby, “Are you wet?”
HOMOSEXUAL HARASSMENT-SUPERVISORY EMPLOYEE
19. One morning during the summer of 1991 employees made repeated references that seemed to relate to legal assistant Jesse, Raben, with whom I had been somewhat friendly, and who had left the firm in the spring of 1990 to attend law school. I inferred that perhaps Jesse had had some communication with a firm employee and had referred to me in the communication.
Upon my return to the office from lunch that afternoon, Chris Robertson offered me a piece of chocolate, with the peculiar statement, “Here, you look like you need some chocolate.” The statement could perhaps be interpreted as a reference to anal intercourse.
CHARACTER-SUPERVISORY EMPLOYEE
20. During weekly litigation support staff meetings Chris Robertson on occasion used vulgar or obscene language including the words “asshole” and “fuck.”
HOMOSEXUAL HARASSMENT-SUPERVISORY EMPLOYEE
21. During one of the weekly litigation support staff meetings, during the spring or summer of 1991, which were conducted by Chris Robertson, I was seated on the floor in front of Chris’ desk. A male employee, Barry Geia stood up and walked past me, his hips passing directly in front of my line of sight. I then sat down in a chair in front of Chris’ desk, whereupon Chris started to whistle at me.
SEXUAL HARASSMENT-COWORKER
HOMOSEXUAL HARASSMENT-POSSIBLE COLLUSION BETWEEN SUPERVISORY EMPLOYEE AND COWORKER
23. Early in the afternoon of October 23, 1991, prior to lunch, I was working in the terrace level in a private carrel a few yards away from Chris Robertson and Katherine Harkness, who were working at a computer terminal. The conversation between Ms. Robertson and Ms. Harkness was largely inaudible, but certain words were repeated by both parties in a markedly audible tone of voice. I recall that the words “bates,” “hit,” and “fit,” in addition to other words, were used again and again with a certain vehemence. (In the context of other repeated words, which I cannot now recall, the word “bates” suggested masturbation and “fit” suggested a fit of rage.) When I asked Chris if I could move to a quiet, private area until I completed the particular task I was working on, she said, “Oh, I didn’t even know you were working there.”
2 comments:
I started working at Akin Gump in early March 1988 as an agency-supplied employee. I had ended a long-term temporary assignment at Hogan & Hartson in late February 1988, where my supervisor was Miriam Chilton.
There was a rumor at Hogan that I was homosexual and in love with a male coworker, Craig Dye.
Information about my employment problems at Hogan may have been communicated to Akin Gump at the commencement of my assignment at Akin Gump, in early March 1988.
CHECKLIST OF MOBBING INDICATORS
Kenneth Westhues, 2006
As workplace mobbing becomes more widely known and deplored, it is to be expected that many workers in academe, as in other fields, will claim to be mobbed as a way of warding off criticism and strengthening their positions in office politics. Indeed, many workers will genuinely feel that they are being mobbed and will attribute lack of sympathy from others as proof that the others are part of the mob. It is therefore essential that any claimed or apparent case of mobbing be subjected to hard-nosed scrutiny in light of empirical indicators, measurable criteria by which to conclude that yes, this is a case of mobbing, or no, it is not.
Below is a checklist of 16 indicators or measures that I have used in my research, and offered on workshop handouts entitled, "WAMI, The Waterloo Anti-Mobbing Instruments (PDF)." In the introduction to my 2006 book, The Prevention and Remedy of Mobbing in Higher Education, I apply these 16 indicators systematically to two different mobbing cases, to illustrate variations on common themes. There is nothing sacred about the list. In my book, The Envy of Excellence, the 16 indicators are boiled down to ten. Perhaps the most important indicator is shown here as No. 12, the enlargement of some real or imagined misdeed or fault in order to smear the target's whole identity, so that he or she is seen as personally abhorrent — a totally alien other, a dangerous, repugnant entity that turns the stomachs of good and decent people.
1. By standard criteria of job performance, the target is at least average, probably above average.
2. Rumours and gossip circulate about the target’s misdeeds: “Did you hear what she did last week?”
3. The target is not invited to meetings or voted onto committees, is excluded or excludes self.
4. Collective focus on a critical incident that “shows what kind of man he really is.”
5. Shared conviction that the target needs some kind of formal punishment, “to be taught a lesson.”
6. Unusual timing of the decision to punish, e. g., apart from the annual performance review.
7. Emotion-laden, defamatory rhetoric about the target in oral and written communications.
8. Formal expressions of collective negative sentiment toward the target, e. g. a vote of censure, signatures on a petition, meeting to discuss what to do about the target.
9. High value on secrecy, confidentiality, and collegial solidarity among the mobbers.
10. Loss of diversity of argument, so that it becomes dangerous to “speak up for”or defend the target.
11. The adding up of the target’s real or imagined venial sins to make a mortal sin that cries for action.
12. The target is seen as personally abhorrent, with no redeeming qualities; stigmatizing, exclusionary labels are applied.
13. Disregard of established procedures, as mobbers take matters into their own hands.
14. Resistance to independent, outside review of sanctions imposed on the target.
15. Outraged response to any appeals for outside help the target may make.
16. Mobbers’ fear of violence from target, target’s fear of violence from mobbers, or both.
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In August 1989 a coworker said to me: "We're all afraid of you. We're all afraid you're going to buy a gun, bring it in, and shoot everybody."
A brief time after I was fired in late October 1991 my supervisor reportedly told her employees that she was afraid I might return to the office to kill her.
Firm management filed a sworn statement with the D.C. Dept. Human Rights (May 22, 1992) alleging that it had been warned by a psychiatric consultant that I might become violent. The psychiatrist later denied talking to the firm at all.
Note that a typical feature of mobbing is that company management may come to side with the mobbers.
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