Cain Allegations Focus Attention on Old Taboo

The swirling allegations of sexual harassment involving GOP presidential hopeful Herman Cain are shedding new light on a once-taboo topic in American workplaces.

In the not too distant past, sexual harassment cases came mostly from women claiming to have been the victims of inappropriate behavior at the hands of male colleagues, as in the case of businessman Cain

But that’s no longer necessarily the case. Harassment complaints overall now regularly include men filing complaints against female supervisors, women bringing cases against other women, and men accusing male colleagues of, well — shocking behavior in the workplace.

Welcome to the new face of sexual harassment in 2011 — a dozen years after the National Restaurant Association settled complaints with Cain’s accusers.

“We continue to see both same sex and opposite sex harassment as we have in the past,” explains Justine Lisser, senior attorney adviser in the communications and legislative affairs office of the U.S. Equal Employment Opportunity Commission (EEOC). “We also continue to see sexual harassment of the most vulnerable populations.”

Allegations of sexual harassment span all levels within organizations, cutting across virtually every industry and type of business — from dairy farms to auto plants, healthcare organizations, transportation companies, even corporate boardrooms and professional sports teams.

In an effort to raise awareness that sexual harassment is against the law, EEOC recently released a series of public service announcements to radio stations across the United States in both English and Spanish, according to Lisser.

It is unlawful to harass an applicant or employee because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Although the law permits simple teasing, offhand comments, and isolated incidents that are not deemed to be serious, it is illegal to harass people by making offensive comments about their gender.

As a general principle, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as the victim being fired or demoted. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not even an employee as in the case of a client or customer.

The number of sexual harassment cases has increased dramatically since a 1998 U.S. Supreme Court ruling (Oncale v. Sundowner Offshore Services Inc., et al). opened the door to same sex cases, says E. Fredrick Preis Jr., senior partner and head of the labor and employment section at the Lemle & Kelleher law firm.

There’s no shortage of evidence in today’s cases, either, because of technology. “Much of it previously was a swearing match — he said, she said,” recalls Price. “But in recent years, we’ve noticed that there’s a lot more documentation that the charging party collects: emails, voicemails, photographs and the like. That kind of evidence makes it easier to prove the case actually happened.”

A federal jury in New Orleans recently awarded a former male construction worker of Boh Bros. Construction Co., L.L.C. with $451,000 to settle a sexual harassment lawsuit that the EEOC brought on his behalf.

Following a two-and-a-half-day trial, the jury awarded Kerry Woods damages for a sexual harassment claim against his former employer, including $250,000 in punitive damages and $200,000 for emotional distress.

The EEOC lawsuit charged that a male superintendent harassed and taunted Woods by engaging in verbal abuse, making gestures of a sexual nature, and by exposing himself. Woods worked for the company as an ironworker.

“All workers, male and female, are entitled to earn a living free from harassment based on sex or sex stereotypes,” said EEOC General Counsel P. David Lopez. “The jury's verdict signals to employers the importance of having robust sexual harassment policies and training in place, including in predominantly male workplaces.”

In the realm of sexual harassment law, there’s no substitute for common sense, observes Janine Yancey, who heads emTRAiN, a firm that specializes in harassment training.

Yancey, whose firm trains a number of large companies, says that she has come across fewer egregious cases in recent years, but that harassment still tends to be a potential minefield for organizations of all sizes, particularly with the advent of social media.

Three states — California, Connecticut, and Maine — require employers to conduct harassment training, while other states merely recommend it as a best practice that could mitigate or help avoid damages in the event of legal action.

With convenient smart phone access to Twitter, Facebook, and LinkedIn, employees more than ever must be educated to exercise common sense in their social media posts.

“It’s like a nonstop kind of dialogue that they are always having,” says Yancey. “I think it’s our task to educate workers that they need to be a little bit more cognizant of what they’re putting out there on the Internet.”