03/18/2010 05:12 am ET Updated May 25, 2011

Letterman: A Setback for Women

To date, the public outrage about David Letterman's affair(s) of the heart has been pretty minimal. Maureen Dowd wrote in the New York Times that "sexual harassment entails pressuring or penalizing a staffer or making the office atmosphere hostile" and she then concludes that since Stephanie Birkitt was promoted there was no sexual harassment. Other than recent statements from groups such as NOW, women commentators and women's groups have generally seemed nonplussed about his conduct and haven't seemed to find it all that objectionable.

I completely disagree. The real point that women and commentators such as Maureen Dowd are missing is was there a "hostile work environment" (the legal term of art required for a Title VII claim of sexual harassment) for the women who Letterman did not bed? The media is in a frenzy focusing on Birkitt and others with whom Letterman may have had relationships. But they are missing what could lead to Letterman's downfall: if women in his office come forward and say they felt victimized, not by unwanted sexual conduct by Letterman, but by a work environment that made them keep this secret, that is enough to trigger a hostile work environment claim. A claim of hostile work environment is not merely limited to whether or not the woman who was the recipient of the conduct felt victimized or felt her job was at risk, but rather applies to any witness of the actions. The key is whether other women in Letterman's office felt that their job was at risk if they reported the conduct or whether they felt that they would not get promoted unless they too engaged in some sort of sexual relationship with the boss.

I just can't imagine that other women in Letterman's office were not bothered by what appeared to be a well known affair in the office, and one that, if the new report in a number of sources suggested today, that the affair continued after Letterman was married. Did they feel that they would lose their job if they came forward about the affair or complained that it made them uncomfortable? Did they feel they were passed over for promotion in favor of Birkitt who clearly was promoted and put visibly on-air time and time again? Did they feel that they must also engage in sexual affairs with Letterman if they wanted to get ahead like Birkitt? The very idea that these young women in the office seem to idolize Letterman and feel he could do no wrong, goes to the heart of why we have laws preventing an environment that puts women on an unequal footing or makes them feel that they need to engage in sexual favors to get ahead. While every indication seems to suggest that the relationship was very much consensual, what message does it send to the rest of Letterman's female staff?

Letterman could have easily found Birkitt another job and taken her out of his workplace environment and continued the affair. And it wasn't as if he just had one office liaison. It seems that by engaging in numerous office romances over the years with young women who worked for him (four different employees over the years, one now being his wife, were reported to have had office affairs with Letterman), that Letterman seemed to have a certain view or expectation of these women.

I am frankly surprised by the rather laissez faire reaction most women seem to have to Letterman's actions. Many people seem to suggest that as a comic he should not be held to the same standard that a politician would. It is too early to tell if Letterman did indeed create a hostile work environment as we simply don't know all the facts. But to say that he should be held to a lesser standard than public figures is ridiculous, especially when for many years he ridiculed philandering politicians and other figures for their sexual transgressions. When one holds themselves out as a moral arbiter or cultural commentator on various mores as Letterman did, it becomes even more disappointing when that person engages in the same conduct that he has pilloried. Why should that standard be any different than for moralizing politicians who trumpet family values on the one hand and engage in affairs on the other hand.

Letterman may have had a ratings bonanza due to his admissions, which may or may not have been his plan, but what he has really served to do is to set back women's rights in a very significant way as women do not seem to be taking this all too seriously. And that's no joke.