So now there’s a fifth allegation against Herman Cain-and we can see exactly why women have been loath to come forward and be dragged through the mud. I don’t know what Cain did or did not in fact do to Sharon Bialek, or Karen Kraushaar, or to the other three women who’ve decided to protect their sanity and jobs by keeping their names private. I am sure that some dedicated reporters are doing their best to double-check the accusations-and since attorney Lin Wood is implicitly threatening the news media with the possibility of libel lawsuits, you can be sure that litigation-averse major media outlets will triple-check to see that every fact is sourced, checked, nailed down, and lawyered up before you see it in print or pixel.
But all that aside, one misunderstanding of Sharon Bialek’s allegations startled me. Let’s review the allegation, as reported in The New York Times:
In her statement to the press, Ms. Bialek said that she had been fired at the association after about a year working for the group’s educational foundation in its Chicago office. She said she sought Mr. Cain’s help to find other employment during a trip to Washington about a month after he left the group.
During that trip, she said Mr. Cain had secretly upgraded her hotel room before drinks and dinner that the two had to discuss possible future employment. She said that after dinner, he put his hand on her leg and ran it under her skirt and pulled her head toward his crotch.
A number of observers, including the Prospect‘s Pema Levy, noted that this appears to go beyond sexual harassment to sexual assault. Beyond? What do people think sexual harassment is? It often involves sexual assault. But the difference is: One is a criminal accusation against an individual while the other is a civil allegation against an employer. These are different terms and different framing for what’s often the same action.
Let’s be clear, both about the distinction and the overlap between the crime of sexual assault and the civil-rights violation of sexual harassment. An individual can be arrested, indicted, and prosecuted under criminal law for sexual assault. An employer can be sued for sexual harassment if one of its employees uses his (or occasionally, her) supervisory authority to threaten, corner, grope, grab, and assault those he supervised. Again, sexual assault is a crime committed by an individual; sexual harassment implicates the employer for the failure to offer male and female employees an equal chance at earning their paychecks. Sexual assault is illegal under every state’s statutes and is almost always prosecuted by a district attorney. Sexual harassment is a charge filed with the Equal Employment Opportunity Commission (EEOC)-remember, it’s an employment problem-and brought into federal court by private lawyers (occasionally, but very rarely, the EEOC wil join in the case). Winning usually requires proving extremely gross behavior-groping, assault, penis statues, sexually demeaning and threatening e-mails-that is also an abuse of power. In fact, you might say that what these women accuse Herman Cain of doing goes beyond sexual assault and rises to sexual harassment. One is a violation of bodily integrity. The other is all that plus an economic threat.
If your manager sexually assaults you, you can take that criminal charge to the police (if you’re willing to be accused of being a slut who invited it through your clothes/walk/habits). If, when you complain about that assault, your employer offers to transfer you and does nothing to your assaulter, you can sue the employer for allowing his sexual harassment (see previous parenthesis). But he can’t have done it just once; the standard for sexual harassment is that the behavior must be “severe or pervasive,” which, employment lawyers have told me, judges often interpret as “severe and pervasive.”
Bialek’s allegation isn’t even particularly shocking compared to others I’ve seen. In my reporting, I got used to reading depositions about serial groping and grinding on assembly lines; about one employee holding down another, knife to her throat, and asking if she would still say no to sex; about bosses who would unzip and finger themselves while talking to administrative assistants; about others who would follow female employees into the women’s restroom and demand oral sex; about penis-shaped calzones or sculptures left threateningly on women’s desks or in their lockers. Read Susan Antilla’s Tales from the Boom-Boom Room for some nightmares from the financial industry, or Bingham and Ganser’s Class Action, which chronicles what happened to one waitress who tried to get a job as a miner because it paid better. (I summarized some of those Jenson v. Eveleth Taconite allegations here.) Or read Getting Even, the book I collaborated on with Evelyn Murphy; we summarized quite a few sexual-harassment cases.
Sexual harassment is horrible beyond belief. While I was reporting on some of those cases, I had trouble sleeping. I recall interviewing a couple of teenage girls who’d been harassed at a Missouri Burger King by an assistant manager. He would grind up against them when they were at the cash register; proposition them daily in the grossest of ways, sometimes over the the headsets they used to take orders; finger their bodies when they walked by. They tried to make sure that neither was ever alone with him; sure enough, if they were, he would attempt to assault them. (Here’s that article, which appeared in Good Housekeeping.) His assaults might have been a crime-although I don’t believe he was ever prosecuted. But when the franchise owner kept him in his job, thereby failing to allow half a dozen teenage girls to function on their jobs without being his prey? That was actionable sexual harassment.
So how did the National Restaurant Association respond to the allegations? Their spokesperson declined to comment, saying that the NRA’s policy was not to comment on personnel matters. Here’s what we know: The NRA settled the two allegations very quickly after the complaints were made. And according to Politico, soon after, Cain “resigned as president of the NRA effective June 30, 1999, before his three-year term was up.” Politico goes on to report that most board members were never told why, although they were left to believe that Cain left for personal reasons. If the NRA encouraged Cain to leave because they believed he was harassing (i.e., discriminating against) its female employees, that’s commendable-and precisely the point of sexual harassment law.
Let’s be clear: This is not a sex scandal. This is an abuse of power scandal.