Sexy marketing or sexual harassment?

In his videotaped deposition, American Apparel CEO Dov Charney was asked about some striking claims from Mary Nelson, a former sales representative who has sued him for sexual harassment.

Keith Fink, attorney for Mary Nelson (deposition video): Did you ever ask Ms. Nelson if she would masturbate in front of you?

Dov Charney, American Apparel CEO: No.

Fink: Did you ever say to Ms. Nelson you had so much faith in her that she could come over to your house, watch TV, have a drink, even masturbate and leave, and you would still have faith in her?

Charney:   I don’t recall making that statement.

Fink:  Is the “don’t recall” a categorical “No,” you didn’t, or you just don’t remember?

Charney’s lawyer: Objection; argumentative.

Here American Apparel makes two arguments: First they don’t agree Charney said that. Secondly they say even as described, it’s an offhand remark not an actual invitation. Mary Nelson, who declined to talk to Dateline, claims Charney did make the comment—while they were discussing whether she would get a raise.

Josh Mankiewicz, Dateline correspondent:  Why was that not her last day at the company?  ‘Cause it would be mine.

Keith Fink, attorney for Mary Nelson:  That might’ve been for you or for me, the final straw that breaks the camel’s back.  But, remember, everybody knew even before this.  But then again, this is just one of the things that Mr. Charney does.

Mankiewicz: Okay.  And so, she’s kinda gritting her teeth and thinking about getting through this?  What?  Tomorrow’ll be a better day and he’ll be a different guy?

Fink:   Try to interact with him as little as possible.

If you think it’s outlandish that a boss would make that comment, even in jest, consider this: when Claudine Ko, a reporter for Jane magazine  was spending time with Charney in 2004 to research a profile, she says the CEO pleasured himself in front of her.

Claudine Ko, reporter for Jane magazine: On one hand, I was shocked.  But, on the other hand—no, I—I was shocked.

Ko says it happened several times, always at Charney’s apartment after a few drinks. She makes no apologies for her decision not to excuse herself when her interview subject pulled down his pants. She says she was just trying to show readers the real Dov Charney, and she says she was a willing observer.

Ko: I did not feel sexually harassed.  You know I knew—I felt comfortable knowing that if I asked ‘em to stop it, he would.

And that’s not the only thing she reported seeing Charney do outside the office.

Fink: Do you remember [bleep] giving you oral sex in front of the reporter?

Charney’s lawyer: Objection; privacy. Direct the witness not to answer.

Ko: He and his—one of his assistants engaged in sexual relations. You know, at no point did I ever think I’m gonna walk out of this room or I am uncomfortable.  I just thought, “This is gonna be a fantastic story.” 

American Apparel describes what happened between the reporter and Charney as “consensual sexual exchanges” and says that Charney and his assistant with whom he was involved at the time thought their activities would be kept private. The company calls it “a social situation which...unfortunately was exploited in order to sell magazines.”

The reporter says that’s wrong, saying Charney was well aware the whole thing could end up in print.

Ko: You can do what you want but just remember, I’m a reporter and I’m going to be writing a story at the end of all of this.

In her story, Ko reported that the sexual encounter she witnessed between Charney and his assistant appeared to be entirely consensual. She also says she interviewed many American Apparel employees, who all seemed happy with their jobs and didn’t consider their boss a pervert.

Ko: If you go to the headquarters, it’s not like you go and you see people having sex on the production floors. It’s not just, like, you know, all out debauchery.

But of all the strange things that may or may not have happened between Dov Charney and his subordinates, perhaps the strangest involves what he wore for part of a business meeting at his L.A. home which plaintiff Mary Nelson says she attended.

Fink: He recalled you wearing a sock on your penis while Ms. Nelson was in your home is that correct?

Charney: Tthe product is called a [bleep] sock.

For the record, Charney says he doesn’t recall whether Mary Nelson was present at the infamous sock meeting, but he says there wouldn’t be anything wrong with wearing the item in front of her. He says he was simply modeling a potential new product.

Fink: Does it cover the entire buttocks?

Charney: No. But neither does a thong.

Nelson’s lawyer says she was horrified seeing her boss wearing the sock. But Charney argues that’s unlikely. He says Mary Nelson, a former dancer and actress in movies like “Malibu’s Most Wanted,” used foul language at work, which Nelson doesn’t deny. And Charney says Nelson didn’t mind talking about sex, especially around her young female assistant.

Charney: Mary said that she liked her tits and, also, that Mary had hit her ass once or twice.

The company says another one of her assistants, a man, even quit because Nelson used lewd language and touched him inappropriately.

Nelson denies she behaved inappropriately toward her assistants. Charney says he let Mary go because of poor job performance.

Charney: Her inability to bring the business to American Apparel that she had promised.

Nelson says she did bring in business. For his part, Dov Charney denies he ever sexually harassed Mary Nelson or anyone else. To Charney, American Apparel is a new frontier of sexual openness in marketing where the old rules no longer apply.

Charney: I’m not a mechanic or a plumber, you know. I’m an artist, I’m a creative guy.

Mankiewicz: Mr. Charney says he’s created a different kind of company.

Fink: He has indeed.  That’s why you’re interviewing me.

Mankiewicz: What I mean is, what’s wrong with the argument that “this is a different kind of company.  We are trying to sell things through sex appeal. And if you don’t like the fact that we’re much more frank about and open about sex, then go work somewhere else.”

Fink: The law is very clear in this country that you cannot have a work environment similar to American Apparel.

But is the law really so clear? Should a creative environment like American Apparel be held to the same standards as a buttoned-down law firm? This is a different time, where the line between offensive and free-thinking is growing narrower every day.

Of the three women who sued Dov Charney, two settled, and the third, Mary Nelson, is still pursuing her case. If she and American Apparel are unable to come to an agreement, the case may go to trial. No word yet when that might happen.

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