• by October 23, 2020

Condé Nast is in the unenviable position of having to review the actions of Jeffrey Toobin, the staff writer The New Yorker suspended on Monday. Toobin last week exposed himself during a video call with employees of the magazine and WNYC radio, Vice reported.

Following the incident, dozens of columnists have either defended or admonished Toobin, often ignoring the real issue of whether Condé Nast faces significant legal liability for creating a hostile work environment. The definition of sexual harassment in the workplace is broad enough to include Toobin's alleged behavior of masturbating in a video call seen by other employees.

Toobin was participating in a video conference on Zoom to prepare for election-night coverage by a podcast jointly produced by The New Yorker and WNYC. During a break in the discussion, Toobin left his web camera on and pointed it downward while switching to a separate video call The New York Times described as "the video-call equivalent of phone sex."

Toobin later rejoined the election simulation, apparently unaware he had exposed himself. What happened next is unclear, though it's likely that someone on the call mentioned the incident to The New Yorker's management, leading to the suspension. Toobin also asked CNN, where he has been a legal analyst since 2002, for time off.

In an emailed memo to New Yorker staffers, EIC David Remnick confirmed that Toobin had been suspended and was investigating the matter. It's hard to imagine what the magazine's management and legal counsel will discover to mitigate the circumstances for Toobin, given his admission of making "an embarrassingly stupid mistake."

The company has to consider whether it wants to employ someone whose judgment is lacking and who may repeat the behavior. Allowing Toobin to return to work may be seen as tacit approval of objectionable actions. That would expose the company to complaints by aggrieved employees who could potentially cite the Toobin incident as part of a pattern of creating a hostile workplace.

The incident is a reminder to other publishers they may need to clarify their policies against sexual harassment to cover work-related video conferences, and train employees to recognize behavior that's offensive and possibly illegal.