Sex, Lies, and Videotape: Should Customs and Border Protection Have Paid My Client $285,000 to Settle Her Harassment Case?

I usually don’t crow in public about my victories.  My mom taught me to be modest and let others do your bragging for you.  Besides, every case is different, and I don’t think people are all that interested in reading or hearing about the nitty gritty details that can make the difference between winning and losing.  Few cases go to trial any more (that’s a subject for another day), and most of the time when I settle a case, the settlement is confidential.  Even if I wanted to crow, I’d be violating the settlement agreement if I did so. 

But allow me to kvell (that’s Yiddish for bragging) just a little about the settlement in Rebecca Carnot’s case a few months ago.  The $285,000 settlement was a rather large one in an individual case by Maine standards and has not just received a lot of publicity, but also drew considerable reader comment online. 

Why so much interest?  Was it the sex?  The lies?  The videotape (like Steven Soderburgh’s hit movie some 15 years ago, there was even videotape, albeit none of the Kim Kardashian or Paris Hilton variety)?

Certainly there was sex—or the lack thereof.  Put yourself in my client’s shoes.  On virtually her very first day of her work, Becky’s supervisor, a man she barely had met, drove an hour with her alone in a car from Coburn Gore, Maine (that’s the border crossing beyond Sugarloaf and south of Lac Megantic where the train derailed) to Jackman.  On the way back, upon learning Becky was single, the boss told her she should court, not date.  When she asked what the difference was, her supervisor told her that dating, unlike courting, involved sexual intimacy. 

This business of no sex until your married (or, as we used to joke in Yiddish, no huppa no shtuppa) became a regular theme throughout Becky’s employment with Customs and Border Protection.  When his daughter got married, Becky’s supervisor commented that it was the proudest day of his life because his daughter was still a virgin.  And the boss regularly referred to unmarried couples who lived together (or POSSLQ’s in the census vernacular) as “living in sin.”

As to the lies, this was your usual he-said she-said case—but with a twist.  Becky’s supervisor, of course, denied making many of the statements that she attributed to him.  But unlike most harassment cases, he didn’t deny all of them.  He said he was only joking when he said a woman’s place should be within 50 feet of the oven, and that his wife should have dinner hot and ready for him when he came home.  And of course, he was only joking when he referred to gays as “Section 212A queers”—the section of the immigration code that bars undesirable people, like pushers and criminals—from entering the country.  Very funny!!!

And like I said, there was even videotape.  No, no sex tapes; just some videotapes of Becky ostensibly showing that her request for overtime was fraudulent because a security camera showed her leaving work at 2 minutes past the hour, not 7 minutes as she claimed.  A few honest coworkers supported Becky and like her said they relied on the clock on the wall for filling out their timecards, not a security camera that wasn’t synchronized to the clock.  But that didn’t deter the agency from relying on the videotape to support its decision to fire Becky for alleged dishonesty.

So, if it wasn’t the sex, if it wasn’t the lies, if it wasn’t the videotape that made this case so interesting, what was it?  Me thinks it was the religion; or the combination of sex and religion.  You see, the supervisor was a fundamentalist Christian—he home schooled his kids, believed that the Bible makes homosexuality a sin, and forbids sex outside of marriage. 

Almost everyone who commented on the settlement seemed to agree that, when you go to work, you check your views about sex and religion at the door.  They said you don’t get to tell your coworker that she is going to go to hell because she’s divorced, or having sex with someone she’s not married to.  And you don’t get to make fun of her religious beliefs by referring to a Catholic mass as a gym workout or expressing that all priests must be gay.  And certainly you don’t get to call gay people “queers.”

Even though I got a big settlement for my client, the public’s reaction gives the civil libertarian that lives inside of me some pause for concern.  Wasn’t the supervisor entitled to his views?  And shouldn’t he be permitted to express them, no matter how Neanderthal?  Are we suppressing speech in the name of political correctness?

In this case, I don’t think that’s what happened; rather, the supervisor fired Becky after she objected to his daily vitriol.  So, this case really wasn’t about freedom of speech or freedom of religion; it was about retaliation.  At least that is how I see it.  And clearly the supervisor crossed the line when he told Becky about how she should conduct her personal life. 

But what if the supervisor hadn’t retaliated, what if he hadn’t fired Becky, what if he hadn’t told her she should court, not date.  Suppose the supervisor had just preached his version of the Bible day in and day out to Becky and the other officers.  Would that constitute an illegal hostile working environment?  That’s the case I’m glad did not cross my desk.  On that one, I’m still wrestling with my angels

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