Out of Order

When the case of a woman who claimed she was fired after refusing sex with her boss came before Circuit Judge Robert H. Dierker Jr., he didn't just issue an order. He let the world know a little too much about his politics and what he thinks about the "de

It began almost immediately after she called it quits, the lawsuit contends, harassing nightly phone calls and repeated requests for sex. It was as if the doctor, working at a St. Louis hospital, didn't understand his secretary's pleas for him to stop, couldn't help himself or didn't care. Maybe he thought persistence would pay off.

The two had a long-standing relationship, after all. Having worked at the hospital since 1981, the woman became the doctor's patient in 1989. He was a director of psychiatry.

Four years after that, the woman was transferred by the hospital to the doctor's office as his secretary, despite the fact she was his patient and despite the fact the hospital knew the doctor's "propensity for sexual harassment of women placed under his supervision," according to the suit. Within weeks, they began having sex.

Several months after it started, the woman ended the affair. But the doctor began calling her every night on her car phone or at home and, when he couldn't reach her there, tracked her down and called her at friends' homes. She asked him to stop.

During the day, at the office, the doctor began trying to touch the woman's breasts and buttocks and exposed his genitals to her, requesting that she perform sexual acts. She didn't, and again asked him to stop. According to the suit, the doctor continued his behavior for seven more months.

Then the woman was fired.
One year later, she filed suit in federal court against the hospital and the doctor, in part under common law -- which protects citizens who are victims of battery -- and in part under Title VII of the Civil Rights Act of 1964, which protects employees who are victims of sex discrimination. The suit was dismissed, in part because under the federal law, an "employer" is defined as someone who employs at least 15 people, which the doctor did not.

Last year, then, the suit went to the state court, where the woman's attorney, Janet F. Catalona, argued that her client was the victim of intentionally inflicted emotional harm by the doctor, whose conduct was so extreme and outrageous that it caused the woman to experience "emotional distress, mental anguish, anxiety, stress, embarrassment, humiliation, and pain and suffering."

The doctor's attorney, Eric A. Todd, argued that the case should be dismissed, in part because "not only must defendant's conduct be so extreme in degrees as to go beyond all possible bounds of common decency, but liability 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.'"

But this is not a story about sexual harassment. It is not about one woman who refused to have sex with her immediate supervisor and wound up the victim of professional vindictiveness. Conversely, it is not a story about a man who had a consensual sexual relationship with an employee and then found himself victimized by a sexual-harassment lawsuit.

Rather, it is about how the court system tries to grapple with the challenge of keeping the judiciary free of personal bias and politics and about how, sometimes, it fails.

The case landed in the courtroom of then-Presiding Judge Robert H. Dierker Jr., of the 22nd Circuit Court in St. Louis, who issued his controversial 16-page order on Oct 5. Before tackling the woman's specific allegations, Dierker engaged in a lecture about the sexual politics of the late 20th century:

"From Anita Hill to Monica Lewinsky, the cry of 'sexual harassment' has been selectively raised to advance certain groups' political agendas under the guise of promoting equal opportunity in the workplace, or under the banner of 'equality' in academe," the opening paragraph of Dierker's order reads, citing chapter and verse from Slouching Towards Gomorrah, a book written by failed Supreme Court nominee and ultraconservative Robert Bork.

"Spawned in the protean atmosphere of federal employment discrimination litigation ... the theories of the 'sexual harassment' police have stretched their tentacles from college facilities to Supreme Court confirmation hearings to legal and judicial ethics ... and now seek to ensnare the common law of torts," Dierker continues. "The Court concludes that the common law does not enact Cardinal Newman's definition of a gentleman, nor Catherine (sic) MacKinnon's vapid maunderings, and that Plaintiff's petition at present fails to state a claim."

Dierker moves on to the two counts filed by the woman: Count I, alleging "intentional infliction of emotional distress;" and Count II, which "alleges the same facts, but attempts to state a claim for negligent infliction of emotional distress."

According to law, Dierker states, intentional infliction of emotional distress must contain the following elements: "defendant acted intentionally or recklessly; defendant's conduct was extreme and outrageous; the conduct caused severe emotional distress; and the conduct was intended only to cause extreme emotional distress to the victim."

Dierker states: "Indeed, as pleaded, the facts alleged at most show that Defendant was seeking to gratify his own sexual urges despite rejection by Plaintiff.

" ....it seems clear that, except for the denizens of the cloud-cuckoo-land of radical feminism, no court has held that sexual advances are ipso facto actionable. More is required to establish a tort than a rejected advance."

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