One of the few details presidential candidate Herman Cain has mentioned about a sexual harassment settlement is that he brought his hand to his chin and mentioned that the woman in question was the same height as his wife.
But can a gesture and comment about stature be a legitimate part of a sexual harassment claim? It depends on the situation, said Ed Zalewski, who specializes in employment law issues at compliance resource firm J. J. Keller & Associates Inc.
“In general, sexual harassment is unwelcome behavior of a sexual nature. It covers a wide variety of circumstances,” said Zalewski, author of J. J. Keller’s Employment Law Essentials manual.
Sexual harassment can include unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature. This behavior must do one or all of the following:
• Affect an individual’s employment.
• Unreasonably interfere with work performance.
• Create a work environment that’s intimidating, hostile or offensive.
A key element is that the behavior is unwelcome. Ideally, the victim will let the offender know this.
“It is not necessary to make it clear that the behavior was unwelcome in order to establish a claim, but victims usually have a greater challenge showing a violation if the conduct was never opposed or reported,” Zalewski points out.
He also notes that isolated incidents are typically not considered sexual harassment. An offhand comment or teasing is not considered sexual harassment, according to the Equal Employment Opportunity Commission, which enforces sexual harassment law.
“A sexual harassment claim has to meet a pretty high standard to hold up in court,” Zalewski said. “A single comment or gesture is probably not enough. Even a pattern of conduct might not be sufficient.”
When deciding whether sexual harassment occurred, courts use the “reasonable person” standard. This takes into account whether a reasonable person would have considered the incident or incidents to be sexual harassment.
“Verbal conduct can be quite rude or offensive before it becomes severe enough to affect work performance or create a hostile environment, which is the legal standard,” Zalewski said. “Cases involving unwanted physical contact or threats tend to reach this threshold more quickly than cases involving only comments or gestures.”
Whether Cain’s gesture and comment, and other unreleased allegations, met the standard of sexual harassment was never decided, as the case was settled outside of court.
That’s not unusual, Zalewski said. “Fighting a claim in court can be costly. While a settlement for tens of thousands of dollars may sound like a large sum, an employer could easily spend as much defending against a claim, especially if the initial verdict is appealed, and the employer may be out hundreds of thousands if it loses.”
Public reaction also must be considered, he adds. Despite the high standard that plaintiffs must meet to prove that unlawful sexual harassment occurred, the negative connotation associated with a sexual harassment lawsuit often is considered when a settlement is contemplated.
A company may step in and address sexual harassment allegations before they reach the level of breaking the law. It can investigate the allegations under its policy, and discipline or fire the employee if that’s warranted, Zalewski notes.
The employer may decide to offer a settlement, he adds, even if it knows that the chances of the claim holding up in court are slim. A confidentiality agreement may be part of the settlement.
“The confidentiality agreement minimizes publicity, and may be included even if the company doubts that the case would hold up in court,” Zalewski said. “Winning in a court of law may be small comfort after losing in the court of public opinion.”