That’s Entertainment!

By Kelly O. Scott, Esq., Head of Employment Law Department

Anyone watching or reading the news these days is well aware of the steady decline in hard news content. It seems that more and more “news” is devoted to what would have been strictly tabloid fodder in years past. The recent sexual harassment scandal surrounding San Diego Mayor Bob Filner probably falls somewhere between tabloid journalism and hard news, with a considerable amount of reporting devoted to the salacious accusations pending against Filner and an equal amount devoted to the legal and political aspects of the story.

Virtually lost in the mix is a detail which could have significant ramifications for California employers. By way of background, Filner has been accused of sexual harassment by eight women, one of which, Irene McCormack Jackson, has filed a lawsuit against him and the City of San Diego. Filner has denied committing sexual harassment, but has admitted in engaging in bad behavior toward women, has promised to take the city’s sexual harassment training and has apologized to those he offended. In connection with the lawsuit, the San Diego City Council last week voted unanimously to not pay Filner’s legal defense bills. In addition, the City Council also voted 9 to 0 to sue Filner to recover any damages the city might have to pay in the case.

In response to the votes of the City Council, Filner’s attorney wrote a letter demanding that the city pay Filner’s legal fees because the city failed to meet its legal obligation to provide sexual harassment training to Filner as a management level employee. The letter states that the mayor may not have known what constitutes sexual harassment and, therefore, the city will be liable for failing to prevent sexual harassment.

Employers generally have a duty to indemnify employees against losses incurred in the performance of their job duties. The right of indemnification, however, does not include intentional misconduct such as sexual harassment. Setting aside the rather obvious issue of how any adult could be confused as to the propriety of kissing co-workers, putting co-workers in a headlock, grabbing them or suggesting that they would work better without panties (all allegations that have been made against Filner), the letter does raise an interesting issue: does an employer’s failure to provide mandated sexual harassment training somehow require an employer to indemnify an employee who engaged in misconduct on the theory that the conduct could not have been intentional because the employee didn’t know any better? Such a standard would create new incentives for employers to provide sexual harassment training, but would raise significant issues concerning individual responsibility.

A definitive answer to this question will not be provided until the issue is determined in a dispute between the City of San Diego and Bob Filner, which may not happen for some time. In the meantime, however, we are sure to be entertained as the Filner saga continues to unfold in the tabloids … and in the news.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2013. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department, at (310) 281-6348 or