Is Sexual Harassment Really Just Telling a Joke She Doesn’t Like?

Nov 09 2011 Published by under Uncategorized

If you listen to Republicans these days, you’d think sexual harassment is the equivalent of uptight politically correct women scoring oodles of cash for claiming they don’t like a joke wherein a man raises his hand to his chin to make a joke about height. That’s Cain’s explanation for how he got accused of sexual harassment; he was telling a joke about height and she (the alleged victim) didn’t like it. Somehow he managed to remember his exact joke though he seems to be taking cowardly refuge in the “I don’t recall” defense on every question lobbed his way.

No business association would have settled claims of sexual harassment had the behavior been contained to such a benign gesture. They paid $45,000.00 to one of the women. Sexual harassment is all too common; studies find anywhere between 40-70% of women and 10-20% of men have experienced sexual harassment in the workplace.

Why does it matter if we really understand what constitutes sexual harassment? Because a Republican presidential hopeful now has 5 different women accusing him of sexual harassment, and worse yet, some of their claims involve alleged sexual assault.

Many false equivalencies are being made in hopes of distracting us all from the serious nature of these charges. There is an important difference between two adults having a consensual affair and a powerful person using their position to impose unwanted advances on an economically vulnerable and unwilling, unwelcoming subordinate. In an attempt to dismiss the seriousness of these charges, Cain and his cohorts are wasting no time minimizing the accusations, moving the goal posts, and spreading misinformation about sexual harassment. For this insensitivity to the civil rights of workers alone, Mr. Cain proves himself unworthy of the office he seeks.

Here’s a list of legal criteria for sexual harassment from the Legal dictionary:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals, or
3. 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. (29 C.F.R. § 1604.11 [1980])

A key part of the definition is the use of the word unwelcome. Unwelcome or uninvited conduct or communication of a sexual nature is prohibited; welcome or invited actions or words are not unlawful. Sexual or romantic interaction between consenting people at work may be offensive to observers or may violate company policy, but it is not sexual harassment.

The courts have generally concluded that a victim need not say or do a particular thing to indicate unwelcomeness. Instead, a court will review all of the circumstances to determine whether it was reasonably clear to the harasser that the conduct was unwelcome. The courts have recognized that victims may be afraid to express their discomfort if the harasser is their boss or is physically intimidating. Victims may be coerced into going along with sexual talk or activities because they believe they will be punished or fired if they protest. Consent can be given to a relationship and then withdrawn when the relationship ends. Once it is withdrawn, continued romantic or sexual words or actions are not protected by the past relationship and may be sexual harassment.

So, we can see that it takes more than a joke she doesn’t like to be found guilty of sexual harassment. Sexual harassment is a very common work place condition and has a very low reporting rate. Additional studies show up to 90% of all women working have been subjected to it at one time or another.

It’s not just the workplace, either. A new study released yesterday shows that half of all teens in school are sexually harassed. Only 9% will report it to a teacher or guidance counselor. The sexual harassment impacts girls more than boys and causes some girls to not want to go to school and to have trouble sleeping.

Sexual harassment consists of two basic categories: quid pro quo and hostile work environment (an offensive sexual joke falls under a hostile work environment). This hostile working environment (aka: the “joke she didn’t like”) involves conduct so pervasive that it alters the conditions of employment and so offensive as to cause a reasonable person to be offended. How many reasonable people are offended by a reference to height? Yeah. I didn’t think so.

There is an important legal distinction between extra marital affairs and sexual harassment that seems to be getting lost as the media lumps all sexual scandals of politicians together. Sexual harassment is unwanted, with the threat of losing one’s job, healthcare, and reputation/status in the work community hanging over a victim’s head if she/he does not comply with the predator’s demands. Sexual harassment is also a violation of federal law; it is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 (as amended).

The moral sphere is also different. One is a personal issue and another is a matter of abuse of power that is undeniably relevant when determining character of someone who wants the job of, arguably, the most powerful person on earth. One could argue that extramarital affairs do not impact the ability to conduct business at peak levels, whereas sexual harassment has a very negative impact on productivity and morale, as well as negatively impacting the victim of the unwanted advances.

One of the women who filed a claim against Cain, Karen Kraashauer, told the New York Times, “When you are being sexually harassed in the workplace, you are extremely vulnerable,” she said. “You do whatever you can to quickly get yourself into a job someplace safe, and that is what I thought I had achieved when I left.”

As an authority figure, Cain set the tone for the work environment and the tone he set is obviously one that at the very least made many women feel uncomfortable, and subjected them to a hostile work environment. If that’s how he led the Restaurant Association, how would he lead the country?

Sexual harassment is indicative of an entitled abuse of power. It can create post -traumatic stress syndrome in many of the women subjected to it. 90-95% of sexually harassed women suffer from a debilitating stress reaction. Victims of sexual harassment lose millions in wages and just under a million hours in unpaid leave each year in the United States. The Equal Rights Organization reports, “Sexual harassment costs a typical Fortune 500 company $6.7 million per year in absenteeism, low productivity and employee turnover. That does not include additional costs for litigation expenses, executive time and tarnished public image should a case wind up in court.” Are we still laughing?

In the event that the person accused has a high moral character, we would see a much different reaction than defaming the accuser. Anger? Yes. But also, we would see an unwillingness to smear the woman/women; a desire to get to the bottom of it; and lastly, a willingness to hear and learn about sexual harassment.

Instead, we have Rush Limbaugh attacking the child of one of the women and a Murdoch company outing the identity of another while Herman Cain calls one of them “troubled” on national TV and sends out an email detailing one of his alleged victim’s financial troubles as if somehow her bankruptcy proves his innocence.

Apparently Cain fails to see the irony of his line of attack, which actually makes a case against him if anyone knows anything about the nature of sexual harassment. But Cain’s thinking seems to be that powerful men never sexually harass financially vulnerable women who are afraid to lose their jobs or, more honestly, his thinking is that financially vulnerable women have no credibility. Cain fails to see that his thinking is exactly why this law was put in to place, to protect the financially vulnerable from becoming sexual prey to those with power.

Because he seeks the nomination to run for President, this is about Herman Cain, not the five women who have come forward with remarkably similar stories.

And so far, Herman Cain has been less than honest with us. What does that say about his credibility?

Image: The Daily Dish

13 responses so far