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I had previously posted about the circumstances surrounding the resignation of former Senate Minority Leader Amy Koch and the termination of her staffer Michael Brodkorb.  Brodkorb had previously threatened possible litigation, but it was unclear at the time what the facts were underlying his potential claim(s).

Today, Brodkorb confirmed what had long been believed – that he and Koch had an affair.  The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb’s attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act.  Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired.  In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination.

In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb’s attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb’s case.  Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as “blackmail.”

I think Brodkorb has at least three serious obstacles to succeeding on his potential claim.  First, he needs to prove that the females who allegedly not fired for having affairs were “similarly situated” to Brodkorb in all material respects.  That means that they had similar responsibilities, reported to the same people, etc.  Brodkorb was the communications director of the Senate.  I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb’s.  If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.

Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination.  While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.

Finally, Brodkorb’s claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another.  If there is one thing I have found that people lie about under oath, it is sex.  Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred.  I wish him luck with that.

In sum, I don’t think Brodkorb’s alleged claims have much merit.  But what really bothers me is the behavior of his attorney.  That is the type of thing that gives all lawyers a bad name.