Cain & Sexual Harassment Allegations

The following is CFJ Executive Director Curt Levey’s statement on the allegations against presidential candidate Herman Cain. Levey, a 1997 graduate of Harvard Law School, is an expert on issues of racial and gender discrimination. While CFJ has not endorsed Cain or any of the other presidential candidates, its mission includes educating Americans about the rule of law.

In light of last night’s Politico story about allegations against Herman Cain, it is important to clarify the legal meaning of the term “sexual harassment.” Specifically, Politico reports allegations that Herman Cain made an “an unwanted sexual advance” and engaged in "innuendo or personal questions of a sexually suggestive nature." Politico suggests that this amounts to sexual harassment, using the term at least six times.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are "sufficiently severe or pervasive" to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that "sexual attraction may often play a role in the day-to-day social exchange between employees" and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Sexual harassment in the workplace is an important problem and trivializing the term undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Clarence Thomas & Affirmative Action

Twenty years ago today, Clarence Thomas was officially sworn in as a Justice of the U.S. Supreme Court in a small ceremony at the Court. National Review Online marks the occasion with a symposium on Justice Thomas’ impact on the High Court and society. Among the contributors is the Committee for Justice’s Curt Levey, who concludes that

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. … Largely because of [his voice on the subject], Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

Levey cites Thomas’ 2003 dissent in Grutter v. Bollinger (upholding racial preferences at the University of Michigan Law School) as the finest example of that voice, noting that it forced even his critics “to acknowledge the genuineness of both his pride in the capability of blacks and his anger at those who demean that ability with preferences.” The full text of Curt’s piece is here and the entire symposium can be found here.

To Justice Thomas’s great disappointment, the Grutter decision left colleges and universities with plenty of latitude to continue their use of racial preferences in admissions in pursuit of diversity. However, that latitude will likely narrow or possibly even disappear before the Supreme Court completes its 2011-12 term next June.

The likely change arises from Fisher v. University of Texas, a lawsuit challenging UT-Austin’s use of race in admissions despite the school’s proven success in achieving racial diversity using non-race-based methods. In a recent discussion of the case at the leading Supreme Court blog, SCOTUSblog, experts agreed that the High Court is likely to add Fisher to its docket for the current term.

CFJ’s Curt Levey was among those contributing to the consensus. His SCOTUSblog post concludes that

Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race.

Curt’s full explanation of why the Court is likely to take the case can be found here. The entire SCOTUSblog discussion can be found here.

Michelle Obama on Judges

First lady Michelle Obama and CFJ’s Curt Levey agree about one thing: “the Court's direction will be at stake in the 2012 election.” So said Ms. Obama at a fundraiser in Rhode Island a few days ago. That echoes Levey’s forecast in an op-ed in The Hill:

“The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.”

David Ingram of the Legal Times characterizes Ms. Obama’s comments as

“a rare example, so far, of President Barack Obama’s reelection effort trying to build support by highlighting his judicial appointments.”

High Court Will Impact Election

In an op-ed in The Hill, CFJ Executive Director Curt Levey takes a look at the new Supreme Court term and concludes that

“Lovers of political drama couldn’t ask for a more fortuitous confluence of events: the most emotional issues dividing the nation – illegal immigration, gay marriage, ObamaCare, racial preferences, and the legitimacy of federal power – all likely arriving at the Supreme Court during a single presidential election year.
. . .
[This] will not only focus candidates and the public on the emotionally charged issues at stake, but will also thrust the ‘judges issue’ – the Supreme Court, judicial activism, the next President’s judicial nominations, and the Senate’s role in scrutinizing those nominees – to the forefront of the 2012 campaign debate.”