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.