When AOL Jobs asked me to write a column commenting about Dov Charney's firing from American Apparel, my first reaction was to roll my eyes. Of course it was "for cause," I thought. The founder of the iconic clothing company has been hit with nine sexual harassment charges (that we know of). And then there's the #NSFW naked dancing video showing him dancing with full flappage in front of female employees. It seemed obvious to me that his firing would be considered to be "for cause" under his contract.
But was it? Maybe not.
American Apparel apparently says that Charney was offered the option of resigning or being fired after he allegedly allowed an employee to post nude pictures of a former employee who sued for sexual harassment. But is that really the reason? It seems so tame compared to what the company already knew about his inappropriate workplace behavior.
He wasn't fired when a reporter interviewing him for a story in 2004 about the company said he engaged in masturbation and sex acts during the interview. In 2005, three former employees sued for sexual harassment, saying he exposed himself, made them come to his home, asked one to masturbate and told one to hire young women he could have sex with. It was so Animal House-esque at American Apparel that they added a clause to their employee contracts instead of firing Charney:
employees working in the design, sales, marketing and other creative areas of the company will come into contact with sexually charged language and visual images. This is part of the job for employees working in these areas.
In 2008 another employee sued, again saying he asked her to masturbate. He also was alleged to have had male employees simulate oral sex with him. He wasn't fired then. In 2011 some more women sued, including a 19-year-old girl who said he interviewed her at his home, answered the door in a towel and tried to have sex with her. He still wasn't fired.He wasn't fired when American Apparel had to defend against a sexual harassment suit in 2011 by a former employee who claimed he had sexually harassed her starting when she was 17, that he sodomized her on her 18th birthday, held her as his "sex prisoner" for hours, and said that she would lose her job if she didn't continue to perform sexual acts on him. It didn't help that some pretty saucy pictures and messages from the accuser came out and the case was tossed, but there were even more suits around the same time.
I could go on and on about the allegations of misbehavior at AA. I won't. There are just too many. My point is this. The board has been on notice for at least 10 years that Charney engages in this kind of super-sexual and completely inappropriate behavior with employees and others. They were perfectly okay with it until last week.
So what really happened?
I think it's all about money, namely, the stock price, which has dropped over 80% in the last five years. I'm guessing Charney's lawyers were smart enough to put a nice golden parachute in his contract if he was ousted for performance. So the board is scrambling to find misconduct, and they went for the obvious. But if the "putting up with sexual harassment is part of the job" language is in lowly employee contracts, imagine what his lawyers cooked up for his contract.
Even if they didn't put in specific language protecting his sexual harassment hijinks, if I were his lawyer I would probably be putting together a brief right now arguing that they didn't fire him for the sexual antics they've known about since 2004.
I predict an interesting but completely confidential arbitration that will settle quietly like most of the cases against the company have done. Will Charney get his job back? Or will he have to look for another job that will include a "naked dancing in front of female employees allowed" clause?
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.
Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.