The Oxford American, a literary magazine founded over two decades ago by Marc Smirnoff, is now in search of a new editor. Last month, Smirnoff, who had been the editor since the magazine’s inception, was fired for sexual harassment along with his girlfriend Carol Ann Fitzgerald.
According to the New York Times, who interviewed Smirnoff shortly after his firing, the magazine’s board of directors initiated an investigation after an intern complained of harassment.
Apparently, the staff had gone on a retreat; an overnight party at a mountain cabin Fourth of July weekend. That night, Smirnoff berated his staffers who were playing drinking games, and the following morning, he “exploded in anger” at a 19 year-old female intern. He then insisted that she ride home with him, alone. Along the way he asked if she wanted to hold hands and if she wanted to go to his favorite “make-out spot.” She unequivocally said no.
In addition to the treatment of the intern on that occasion, the board’s investigation produced accounts of a workplace atmosphere charged with sexual harassment. Staff members relayed to the board how Smirnoff would call female interns “baby” and that he would often make lewd comments and unwelcomed sexual proposals.
Smirnoff’s response to the claims, however, is raising eyebrows. He is not suing to get his job back, but he and Fitzgerald have begun an aggressive campaign to get “their story” to the public by publishing a 53-page version of what happened on their website Editors In Love.
What is particularly absurd about Smirnoff’s efforts to tell his side of the story is that he publically admits to doing much of the conduct complained of. He told the NY Times that when he would touch employees that it was always nonsexual and paternalistic. On his website, the touching referred to (and that he defends) includes patting, hugging, and kissing interns on the top of their heads. It is Smirnoff’s belief that his intention is what controls and insists that he was always playful, “benign” in his banter, and compares himself to Ricky Gervais’ character on “The Office.”
Sexual harassment is a very serious workplace issue and is controlled by both Federal (Title VII of the Civil Rights Act of 1963) and state laws. Sexual harassment is considered a form of discrimination and does not have to be sexual in nature. Generally speaking, conduct done by a supervisor that culminates in an adverse employment action against an employee, or severe and pervasive conduct that creates a hostile work environment can violate the law. A sexual harassment lawyer in San Bernardino can give you more information on California state laws.
Simply because Smirnoff paints himself as a paternalistic, bumbling boss does not make his conduct legal. A hostile work environment is one that is wrought with unwelcome comments or conduct, based on a person’s sex and is severe or pervasive enough to “alter the conditions” of the person’s employment, creating an abusive atmosphere. Thus, while Smirnoff may think his banter is benign, if it offends his employees, and is pervasive enough to create a hostile environment, it could violate the law. Even Smirnoff admitted that with his jokes he “walked a fine line.”
The Oxford American’s board was correct in initiating an investigation into the staff’s claims since the fastest way to liability is for an employer to ignore an employee’s report of harassment.
If you or someone you know is suffering harassment in the workplace, consult a sexual harassment lawyer in San Bernardino.