Sexual Harassment: Where Is Line Drawn?

Asked if he had a roaming eye on Fox News Monday night, Herman Cain joked, “I enjoy flowers like everybody else.”

But he adamantly denied the allegations of sexual harassment that have been lodged against him.

“I believe,” he told Greta Van Susteren, “I have a good sense for where you cross the line relative to sexual harassment. ”

But that line,  critical as it can be in sexual harassment allegations, is often misinterpreted, said legal experts.

“Lots of cases in this area involve line drawing,” said Joanna L. Grossman, a professor at Hofstra University School of Law.

“The line is not where he thinks it is based on his motivation. The line is what a reasonable person would understand to be harassing behavior,” Grossman said.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on one’s sex, and the U.S. Equal Employment Opportunity Commission is charged with enforcing that law. In fiscal year 2010, the EEOC received 11,717 charges of sexual harassment.

On its website, the EEOC’s guidelines state:  ”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.”  The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature … when 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.”

The EEOC  encourages employers to put in place a grievance procedure and sexual harassment training, along with a way to  respond quickly to employee complaints of harassment.

In various interviews, Cain has said that his former employer, the National Restaurant Association, handled one of the sexual harassment allegations internally. In such instances, confidentiality agreements are often signed that prohibit the parties from discussing the terms of  any settlement.

But in the majority of the cases, individuals who believe they’ve  been sexually harassed hesitate to come forward with the allegations.

“The fear of retaliation,”  said Robert B. Fitzpatrick, a lawyer who has represented individuals on both sides of  a sexual harassment claim, “contributes to silence even when an individual feels conduct is inappropriate or creating a hostile work environment.”

Fitzpatrick said, “Employers have to find a safety free zone, where people have a safe place to go and say, ‘here’s what’s happening to me, ‘ and there won’t be consequences for doing that.”

Experts said in the majority of the cases, formal complaints are never filed.

“Most people who experience harassment,” said Grossman, “fear retaliation. All the evidence suggests that’s true. Most people do not want to go through the process. People have a sense that there are hyper complaints in the work place, in fact a lot is never complained about.”

Grossman said a hostile work  environment can be defined as “comments, gestures, pictures, drawings, anything that is sexual in nature and that is unwelcome. It has to be severe or pervasive, and it has to create a hostile, offensive or abusive work environment from the perspective of a reasonable person.”

But  Camille Hebert, a professor at Moritz College of Law of the Ohio State University, said too much emphasis is put on the legal definitions of sexual harassment.

“You can have behavior based on sex — and the courts will say it’s not actionable because it’s not severe or pervasive,” she said. “But it seems to me that the line about how people behave in the workplace should not be where the ‘actionable’ line is. I always say, sort of jokingly, if you weren’t doing it in front of your mother, you shouldn’t’ do it. If it’s behavior that you have to go, ‘I wonder if this is OK,” the answer has to be no.”