The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"The Most Gullible Man in Cambridge" Story Gets Even Stranger
The legally strange dimension: A claim that the magazine article author sexually harassed the subject of her article, apparently by "seek[ing] inappropriate personal and romantic intimacy with Plaintiff."
See Hay v. New York Media LLC, a breach of contract, libel, and sexual harassment lawsuit brought by Bruce Hay (representing himself) against New York Media LLC, author Kera Bolonik, and New York Media's lawyer David Korzenik. Here is an excerpt from the Complaint (you can read the underlying stories starting at p. 52):
[4.] Plaintiff Bruce Hay is a professor at Harvard Law School, where he teaches Civil Procedure and related subjects. In 2018, he found himself in an escalating legal conflict with two women he had loved — Maria-Pia Shuman, a cisgender white woman, and Mischa Shuman, a transgender woman of color …, who are married to each other. Plaintiff had been very close to the Shumans until 2017, when a painful rupture — facilitated by individuals who had an interest in driving them apart and stoking conflict between them — made them bitter adverSaries in court and in Title IX proceedings at Harvard.
[5.] In July 2018, Plaintiff agreed to work with New York's editor, and with
Defendant Kera Bolonik on an article for the magazine about his dispute with the Shumans. The agreement was that the article, to be reported by Bolonik, would meet the high standards of professional investigative journalism long associated with the magazine….[7.] Defendants did not produce the responsible piece of investigative journalism they promised, and made no real attempt to do so. Instead, they seized the opportunity to produce a sensational "True Crime" story, replete with vicious transphobic and misogynistic stereotypes, portraying the Shumans as scheming, deviant femmes fatales preying on a series of men, and Plaintiff as their credulous, hapless victim….
[13.] Had Defendants actually honored the agreement with Plaintiff, and produced the responsible piece of investigative journalism they had promised him, this would all have turned out very differently. A truly professional investigative work … would have revealed that far from being the predators portrayed in the article, the Shumans are the victims of a predatory campaign to demonize them for their gender nonconformity; that the "criminal" label affixed to them is the product of a prejudice-driven effort to weaponize law enforcement; and that they and Plaintiff are complex individuals who loved each other who find themselves locked in a conflict cynically orchestrated by others….
I can't speak to the merits of the breach of contract claim (or the related bad faith claim) or of the defamation claim, since that turns heavily on the facts. But I was struck by what seemed to me a highly novel sexual harassment claim:
[165.] For purposes of New York Human Rights Law, Plaintiff was a "consultant or providing services in the workplace pursuant to a contract" with New York Media. N.Y. Exec. L. § 296-d.
[166.] For purposes of New York Human Rights Law, Bolonik's sexual harassment of Plaintiff constituted "harassment because of [his] sex." N.Y. Exec. L. § 296.
I'm pretty skeptical that a source for a story (or a subject of a story) would be covered by New York sexual harassment law. I don't think sources and subjects of magazine stories would qualify as consultants or service providers.
And in any event it's hard for me to see how Bolonik's behavior in the Complaint would qualify as sexual harassment. The most relevant passage in the Complaint seems to be,
[92.] Bolonik's pursuit of intimacy with Plaintiff frequently crossed the line into sexual harassment. She contacted Plaintiff almost daily by telephone or text message, often outside of business hours, insinuating herself into his personal life and trying to draw him into hers. She shared inappropriate details about her sexual relationship with her domestic partner, her romantic history, and her sex life, and pressed him to provide equivalent information about himself. From early on Bolonik sought romantic intimacy with the Plaintiff. Early in their acquaintance she took Plaintiff to dinner with two of her personal friends, telling him afterward that her friends had "approved" him for her, hinting at the double meaning. During their early in-person encounters Bolonik detected Plaintiff's discomfort with her intimate advances and sought to reassure him that she was exclusively lesbian. She repeatedly told Plaintiff that she "cared" about him, and expressed concern that he did not return her feelings.
Even if this would qualify as sexual harassment in a typical work environment (and I'm not sure it would, especially in the absence of an indication from Hay that this was unwelcome), Bolonik was writing a story about Hay's personal life, including his sexual relationships. She was supposed to "press[] him to provide [personal] information about himself. And to do that, she might well want to share personal details and create a sense of "intimacy" in order to get him to open up to her.
Perhaps she was being manipulative, but it's hard to see such manipulation as sexual harassment, especially in the absence of any sexual propositions, attempts at sexual touching, and the like. (The Complaint does later say, "Bolonik treated Plaintiff as a researcher, fact-checker, and legal expert as well as a source and romantic partner," but I don't see any concrete evidence of anything "romantic" there.) It will be interesting to see what the court will do with this.
UPDATE: I originally erroneously stated that the quote in paragraph 165 was from a California law; my apologies for the error, and thanks to reader David Nieporent for setting me straight.
