Elements of sexual harassment
Herman Cain is the latest example of someone in public life to be accused of sexual harassment. Details of his tribulations are growing but many still may have questions about what sexual harassment is and why is it significant.
Sexual harassment is a violation of Title VII of the 1964 Civil Rights Act that prohibits discrimination on the basis of sex. Simply defined it is behavior unwelcome to the victim that has employment consequences. Women or men may be subjected to harassment.
There can be a fine line between office romance and harassment. If behavior becomes unwelcome, it crosses the line. What complicates the matter is that there often are no witnesses. Surveys have shown that sexual harassment is a frequent occurrence in public and private workforces.
The employer is liable if harassment has been found to occur, even if higher echelons had no knowledge of the occurrences.
Employers need to have a posted sexual harassment policy with the name of a go-to person, and organizations have been advised to provide training to their employees. This is not a minor issue.
A survey of Illinois public employees found that 59 percent of women said that had experienced one or more incidents of harassment in their present job. Types of harassment ranged from actual or attempted rape to pressure for sexual favors to touching, looks, gestures or whistles and catcalls. If such behaviors affect work status or performance, they are sexual harassment.
Guidelines from the Equal Employment Opportunity Commission state that "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" will be considered harassment when
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
How is a hostile work environment gauged? Frequency and severity matter. Has conduct interfered with the complainant's work performance? Has the complainant suffered any psychological harm?
Allegations against Cain, like previous ones against Arnold Schwarzenegger or Clarence Thomas remain suspect to their adherents and open to question by many. However, the seriousness of the problem can be demonstrated by looking at claims in the public and private sectors that have been adjudicated.
A particularly troubling case involved the U.S. Navy's annual Tailhook Association convention of naval aviators. Female officers were forced to run a gauntlet of groping male colleagues. This was found not to be an isolated incident. An admiral had to retire after being accused of stymieing the investigation.
One of the largest suits filed involved Mitsubishi Motor Manufacturing of America. The suit was filed by 400 female employees of its Illinois plant. Mitsubishi entered into a consent decree and paid $34 million to victims of harassment.
The bottom line is that instances of sexual harassment remain common. To rise to the level of a legal complaints, actions must be unwelcome and affect employment status. Employers should provide a policy and training. Employers may be held liable if cases go to court.
If anything, sexual harassment is underreported because of fear of retaliation or embarrassment.
Lana Stein is a professor emerita of public policy at the University of Missouri St. Louis. Among her writings is a textbook chapter on sexual harassment. To reach Voices authors, contact Beacon features and commentary editor Donna Korando.