Time & Attendance
By Staff Report
Nov. 9, 2011
Revelations that Republican presidential candidate Herman Cain was accused of inappropriate workplace behavior more than a decade ago have already had an effect his candidacy.
But the topic does not lend itself to a three-minute cable-news segment; there’s a history here that bears considering. Presently, the media and the public are viewing Cain’s actions and the National Restaurant Association’s reaction to the allegations through a 2011 prism. That’s a mistake.
I am not using historically based moral relativism to excuse sexual harassment. But to understand why Cain and the NRA may have reacted to the allegations in the manner they initially did, one needs to understand the relevant climate of the 1990s.
Sexual harassment claims skyrocketed following the 1991 Anita Hill-Clarence Thomas case and the subsequent passage of the Civil Rights Act of 1991, which authorized jury trials and punitive damages in such cases. These events made sexual harassment a very hot employment-law topic in a time when the parameters of what constituted harm and what triggered liability was still being considered by the courts.
In early 1998, Monica Lewinsky surfaced in a case previously filed by Paula Jones against then-President Bill Clinton. For better or worse, the ensuing political and media frenzy raised the profile of harassment claims in an unprecedented manner. We saw how public, even consensual private actions can become.
In the same year, the Supreme Court handed down decisions in two landmark cases, known commonly as Faragher and Ellerth. Only since these two cases were fully adjudicated in 1998, with others following in their wake, has it become clearer what constitutes harassment, and how cases can be defended.
Between 1996 and 1999—the time Cain’s actions could have allegedly occurred—the delineation between harassment and simply inappropriate behavior was significantly murkier than it is today, except in the most egregious cases.
As a result of this ambiguity, and the potential harm even baseless allegations could do to one’s career, sexual harassment claims, particularly involving prominent individuals, received tremendous legal attention. The far more uncertain landscape led some companies to apply rigorous zero-tolerance policies that could result, at times unfairly, in even innocuous behavior leading to separation. For Cain’s present campaign, this historical context cuts both ways.
First, it is possible that whatever the allegations against Cain were, they would not be pursued today. Even if not viewed as harassment now, they might still be settled for a nominal or nuisance value. This was doubly true in the late 1990s when the consequences of harassment litigation were much more unpredictable.
However, given how potentially grave even minimally offensive allegations were during that time, Cain’s hazy recollection of the matter is striking.
The fundamental issue now is credibility. Such a consideration must be viewed in the historical context; something that may be to the Cain campaign’s benefit and detriment.
Today, we have a much clearer understanding of what constitutes sexual harassment. However as this issue sits at the crossroads between people’s actions and perceptions, it is insufficient to adhere to the letter of the law.
In order to minimize the likelihood that such claims will arise, companies and organizations must adopt the type of workplace policies that build a culture of civility and professionalism. That should be the goal of every leader—be they CEO, shift manager, or commander-in-chief.
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