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.”
Ernest Haffner, senior attorney adviser in EEOC’s Office of Legal Counsel, reinforced the need for a pattern. But he noted that with so many gray areas the complaint needs to be reasonable.
“When the harassment reaches a point that the person reasonably perceives it to be discriminatory and create a hostile work environment, that is the point at which it is unlawful,” he said. “But like I said, that can be a gray area because people can vary from individual to individual. But whether it is going to be illegal is going to be judged from the standpoint of a reasonable person, because some people maybe more sensitive than others. So the person subjected to the harassment has to personally find it abusive, and that person has to reasonably find it that way.”
While the general rule is that there needs to be a pattern, Committee for Justice executive director Curt Levy pointed out that in some instances conduct is so egregious that a single incident could create a hostile work environment.
“Now the language [of the law] is ‘severe’ or ‘pervasive,’” Levy said. “So what a couple of people pointed out yesterday was some of the stuff President Clinton was accused of could be one instance. For example, I don’t remember the details, but he supposedly pulled his pants down in front of Paula Jones when he was Governor. That would probably be severe enough to constitute sexual harassment.”
In order to avoid a sexual harassment accusation, Haffner counseled common sense.
“Obviously there are somethings people realize are inappropriate in the workplace: sexual conduct, use of degrading language, profanity generally, and to the extent that you interact with other people and you realize they are uncomfortable with, that is something you want to avoid,” he told TheDC.
Matson said people who feel they have been victims of sexual harassment should actively work toward resolving their situations.
“One thing that has changed is companies — large companies — generally have a policy on the books about how to report sexual harassment,” she said. “So the first thing an employee should do is check their employee manual and see what the process is internally. And of course they can also go forward with claims to the federal government.”