Without a detailed account of what actually happened, 1990s-era allegations that Herman Cain sexually harassed two unnamed female employees while CEO of the National Restaurant Association have raised a question: What actually constitutes sexual harassment?
Sexual harassment is considered a form of sex discrimination, falling under the purview of Title IV of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex and/or national origin.
The Equal Employment Opportunity Commission (EEOC) says sexual harassment is unwanted sexual attention or conduct.
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment,” the EEOC explains.
So, what is an “unwelcome” sexual advance? National Organization for Women (NOW) vice president Erin Matson explained that there are two different types.
First, Matson told The Daily Caller, there is “‘Quid pro quo,’ meaning, ‘do this or you won’t get a promotion’ or ‘do this or you won’t get work.’ For example ‘go out with me, or I won’t put you on this project.’
“A second type is creating a hostile work environment which would be an ongoing pattern of making sexually suggestive comments about an employee which are not necessarily tied to advancement, promotion or pay.”
The “hostile environment” standard is the more vague of the two. The EEOC notes, however, that there must be a pattern. Isolated incidents usually cannot constitute sexual harassment. (RELATED: Cain confirms ‘false accusations’ of sexual harassment)
“Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted),” the EEOC explains.
Center for Equal Opportunity president Roger Clegg explained that asking someone out on a date once and being turned down would not be considered sexual harassment. But continued, unwanted sexual behavior could lead to a hostile work environment.
“Asking somebody out for a date and the person says ‘no’ and that is the end of it would not be sexual harassment. On the other hand if you are repeatedly making lewd remarks and physical contact that is a violation of the law,” he told TheDC, noting, “There is a subjective element in it and it depends on the extent to which the person is on notice: If the action doesn’t seem to be that unreasonable to the perpetrator, but he is told repeatedly to stop doing it, that would be a problem. But there needs to be a pattern.”