Sexual Harassment: The Cained Women


Since Sexual Harassment has once again returned to American Politics, thanks to four different women who claimed to be the victims of it at the hands of Republican Presidential candidate Herman Cain, it is a good time to review the law on the subject.

The legal basis for a Sexual Harassment claim is the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin:

It shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to (her) compensation, terms, conditions, or privileges of employment, because of… race, color, religion, sex, or national origin.

Sexual Harassment was further defined by the Equal Employment Opportunity Commission as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when: 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; 2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or 3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment.

Sexual Harassment manifests itself in one of two ways: 1) the exchange of concrete employment benefits for sexual favors; or 2) harassment that creates an offensive or hostile work environment. A successful case requires proof the harassment was: 1) based on sex; 2) unwelcome; and 3) sufficiently severe and pervasive.

When a supervisor sexually harasses a subordinate, because of the subordinate’s sex, the supervisor discriminates on the basis of sex. Meritor Savings Bank (1986). A woman must show she would not have been the subject of harassment, but for her sex.

The law allows work-place criticism and sexual flirtation. Mere criticism in the work-place, not based on sex, does not violate the law. A boss can be unpleasant, critical, or even mean, and yet not be guilty of sexual harassment, as the Civil Rights Act did not create a general civility code. The Supreme Court has never held workplace harassment…is automatically discrimination because of sex, merely because the words used have sexual content or connotations. The law does “not mistake ordinary socializing in the workplace, such as…flirtation, for discrimination.”

A second issue is whether sexual advances were unwelcome. Ongoing voluntary romantic engagements do not constitute sexual harassment. Co-workers can engage in sexual relations, as long as they are consensual. A claimant’s dress and conversation are relevant in determining unwelcome conduct. The Court in Meritor said it does not follow that a woman’s sexually provocative speech or dress is irrelevant, as a matter of law, in determining whether particular sexual advances were unwelcome. In other words, a man can introduce evidence of what was said and what she was or was not wearing. If a man made sexual advances, after a woman walked into his office and took off all her cloths, subsequent harassment charges could be defended against with evidence of her naked appearance.

The Supreme Court in Meritor further said sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. A single sexually explicit remark is not sufficient to prove a wrong. See Clark County School Dist. (2000). Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not constitute discrimination. Sexually hostile or intimidating environments are characterized by multiple and varied combinations and frequencies of offensive exposures, which would dictate an order of proof demonstrating the injury resulted not from a single or isolated offensive incident, comment, or conduct, but from incidents, comments, or conduct that occurred with some frequency. Courts will look to the frequency, severity, verbal or physical nature of offenses, and whether they interfered with work performance. Harris v Forklift (1993).

Since Herman Cain did not fight and win his cases, but instead made payments, it is fair to assume all of the required evidence was available against him, before cash settlements were made.

Perhaps Cain may now sympathize with President Clinton, who was innocent of sexual harassment as to his purely consensual affair with Monica Lewinsky. She never once said his advances were unwelcome. Clinton was properly acquitted in the Senate of trumped-up impeachment charges brought by House Republicans.

Clinton was also not guilty of charges brought by Paula Jones. In Jones v Clinton (W.D. Ark. 1998) Judge Susan Wright rejected Jones’ claim that a single incident of allegedly requesting oral sex was enough, in and of itself, to create a hostile work environment. Jones, who worked for Arkansas, was not even directly under the supervision of then Gov. Clinton. Courts have ruled where a supervisor has no authority over an employee, because they work in different departments, it may be improper to find liability.

Whether or not Herman Cain could have prevailed in his sexual harassment cases, if they had gone to trial, it is useful to know the law of sexual harassment.

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