What Is Sexual Harassment and What Should Herman Cain Do Now

I feel uneasy about Herman Cain right now. It has nothing to do with thinking he ought to step aside because of his past acts, because I don’t know what those acts were, or if they occurred, or whether they would have constituted sexual harassment in a US federal court in the 1990s.

What I feel uneasy about is his reactions and seeming inability to get past the story. He’s got to get out in front and tell his side, without dodging or omitting facts. If Cain doesn’t, somebody else will certainly dig them up and publish them anyway.

But, I don’t think Cain’s position can be compared to the Clarence Thomas situation, because Thomas admitted that the affair had taken place. And, most important, Thomas was not running for president. The Supreme Court is not in the same league as the presidency in handling crises, because the Court does not have crises that can be compared to those that a President has to face rather routinely.

However, the Cain situation is a lot like Clinton’s affair with Monica Lewinsky because Clinton denied, denied and denied, right up until the moment when he was trapped and had to retract his lies and tell the truth. Even then, his version seemed to be rather lightweight compared to the facts presented by Lewinsky. But don’t hold your breath till the media jumps on the Clinton story for comparisons. James Carville, the Democrat political counsel, was smug on CNN’s Anderson Cooper this week, saying, about who squealed on Cain, “…of course it was Perry. Who else had anything to do with it, especially since Cain is Romney’s stalking horse.” There’s a piece of real news, if it’s true.

Just what is sexual harassment? Well, it is probably not well understood by most of the media who are filling their programs with it right now.

Title VII of the 1964 Civil Rights Act contains broad prohibitions against sex discrimination, and originally covered employment discrimination based on race, color, national origin, religion, age, and disability. Title VII followed the Equal Pay Act of 1963, which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

In 1972, Congress passed the Equal Employment Opportunity Act which created the Equal Employment Opportunity Commission (EEOC) and empowered it to enforce Title VII of the Civil Rights Act of 1964. The EEOC created regulations defining and prohibiting sexual harassment as a form of sex discrimination.

In the late 1970s courts began holding that sexual harassment is prohibited under the Act. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII.

After being fired from her job at a Meritor Savings Bank, Mechelle Vinson sued Sidney Taylor, the Vice President of the bank. Vinson charged that Taylor had coerced her to have sexual relations with him and made demands for sexual favors while at work. Vinson stated that she had intercourse with Taylor 40 or 50 times. Additionally she testified that Taylor had touched her in public, exposed himself to her, and forcibly raped her multiple times. She argued such harassment created a hostile working environment and a form of unlawful discrimination under Title VII of the Civil Rights Act of 1964. Vinson sought injunctive relief along with compensatory and punitive damages against Taylor and the bank. The Court held that Title VII was "not limited to 'economic' or 'tangible' discrimination," finding that the intention of Congress was "'to strike at the entire spectrum of disparate treatment of men and women' in employment. . ." The Court pointed out that guidelines issued by the EEOC specified that sexual harassment leading to non-economic injury was a form of sex discrimination prohibited by Title VII. The Court recognized that plaintiffs could establish violations of the Act "by proving that discrimination based on sex has created a hostile or abusive work environment."

A review of court decisions after the Meritor case shows that the determination of what constitutes "severe or pervasive conduct" is always based on an examination of the totality of circumstances. In gauging the totality of circumstances, courts focus on some or all of four factors: 1) the level of offensiveness of the acts or words; 2) the frequency or pervasiveness of the offensive encounters; 3) the total length of time over which the encounters occurred; and 4) the context in which the harassing conduct occurred.  

Today, sexual harassment in the workplace occurs when an employer subjects an employee to unwelcome verbal, nonverbal, or physical conduct of a sexual nature that affects the employee's employment, interferes with the employee's work performance, or creates a hostile work environment. Both men and women are protected from sexual harassment in the workplace.

Two types of sexual harassment are covered by EEOC regulations. The first type is Quid Pro Quo Sexual Harassment in which an employee is hired, maintained, fired or promoted based on his or her willingness to perform sexual acts or favors. The second type is Hostile Workplace Harassment in which unwelcome verbal or physical conduct of a sexual nature unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive working environment.

There you have, dear readers a thumbnail sketch of US sexual harassment law.

Did Herman Cain sexually harass anyone? We simply do not know because we do not have the facts needed to judge.

But, we do know several things. The women were paid rather small settlements, which could be compared to nuisance tort settlements. They are unwilling to make public statements, but want to rely on written ones read by their lawyers. This could be to preserve their privacy but it could also be to prevent the impression that the harassment was minimal, if indeed it occurred in the legal sense of the term. The last thing we know is that there were no trials, and so we cannot base our evaluation on the decision of a court that would have heard and evaluated all evidence. But, keep in mind, that the law is a changing process, and what is considered sexual harassment in 2011 may not have been sexual harassment in the mid-1990s.

This makes it all the more important for Herman Cain to tell all, and get it out of the way so he can go back to being a presidential candidate.