What Exactly Is Sexual Harassment?

Herman Cain's White House bid has been rocked by sexual harassment allegations. This raises several issues about harassment and the workplace. Host Michel Martin talks with lawyers Barbara Brown and Cyrus Mehri about defining and preventing sexual harassment. (Advisory: This segment contains language that may not be suitable for all audiences.)

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MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. Today we have a couple of conversations that touch on sensitive subjects. We'll be reminding you throughout the program but we thought it best to let you know up front what we're going to be talking about today. Later in our mom's conversation we'll be talking about how you can talk with children, especially younger children, about that child abuse scandal unfolding at Penn State where an assistant coach is accused of sexually abusing a number of children over the course of years.

We know that this is something that has disturbed and preoccupied many parents lately so, we want to see if we can offer some useful guidance. But we wanted to begin today by paying some attention to an issue that's been at the forefront of the ongoing Republican presidential primary campaign - those sexual harassment allegations that have dogged Herman Cain, the former CEO of Godfather's Pizza who had been making a strong impression in his first run for the presidency.

Over the last several weeks reports of sexual harassment involving several women have surfaced, dating to Cain's time as leader of the National Restaurant Association. Two of the women have revealed their identities, one of them offering a graphic description of Cain's alleged conduct. Cain denies the allegations and has vowed to stay in the race, and last night Mr. Cain's wife Gloria who has not made many campaign appearances to this point did appear on Greta Van Susteren's program on FOX News, where she defended her husband against the accusations.

(SOUNDBITE OF FOX NEWS BROADCAST)

GLORIA CAIN: To hear such graphic allegations and know that - that would have been something that was totally disrespectful of her as a woman, and I know that's not the person he is. He totally respects women.

MARTIN: Now, it's noteworthy that this issue has surfaced almost exactly 20 years after hearings were held that surfaced sexual harassment charges against Supreme Court Associate Justice Clarence Thomas, who is another conservative figure with whom Mr. Cain has been compared by both supporters and critics. So, we thought it would be useful to have a conversation about just what sexual harassment is, how it is viewed by the courts and the court of public opinion. So we decided to call upon two lawyers who have a deep background on opposing sides of sexual harassment litigation.

In fact, they've faced each other. Cyrus Mehri is a partner in Mehri and Skalet. He's a civil rights attorney. He represents people who say they are victims of harassment and workplace discrimination. Among his clients have been women working on Wall Street, and senior black executives at Texaco. Also joining us is Barbara Brown. She's the senior employment lawyer in the Washington Office with the Paul Hastings Law Firm. She often works to defend employers who've been accused of sexual harassment, and her clients have included retailers and financial service firms and a wide array of employers.

And one more reminder that this conversation might not be appropriate for everybody. That being said, thank you both so much for coming.

CYRUS MEHRI: It's good to be here.

BARBARA BROWN: It's good to be here as well.

MARTIN: So, Cyrus I'm just going to start by asking you, is there a clear legal definition of what sexual harassment is?

MEHRI: Well, the Supreme Court has tried to give a clear definition. I think it started 14 years ago with a landmark pair of cases that came down on the same day, one called Ferreger(ph) and the other called Ellerth(ph), and they're written by Justice Kennedy for one opinion and Justice Souter for the other, both 7-2 decisions with, interesting, Clarence Thomas in the minority there. But they really tried to look at this issue and give guidance to the country and the courts by saying you have to look at the context, and there are really two different types of sexual harassment that they identified.

One is what the public might see as kind of a quid pro quo type of situation or they call it a tangible(ph) employment action associated with a sexual favor of some sort. That's one type of sexual harassment. The other is a hostile work environment which they said has to be either severe or pervasive.

MARTIN: Either severe or pervasive?

MEHRI: Right.

MARTIN: Okay. Now, Barbara has the - has our interpretation of how this actually plays out in court, have you observed a change over time or are the courts pretty consistent on what they're willing to entertain and what they're not?

BROWN: Well, there's been a change over time in terms of what employers are willing to tolerate, and I think from those decisions that Cyrus mentioned what the Supreme Court said and what courts have been looking at since then is two things. One, you've got to make sure that personnel decision-making is not affected by sexual harassment. So if somebody propositions someone and then they don't get a promotion or they - they're in a relationship with each other and he wants to continue it, she doesn't, then she gets demoted - that's it.

The employer's liable for that and the courts have been very consistent about that. When you're talking the hostile environment type, what the Supreme Court said is employers, it's your job to set up a good policy against it, to have a good complaint procedure and encourage people to come forward and let's nip this in the bud. Don't let the pervasive intimidating hostile sexual banter or sexual conduct go on, and the courts have been pretty consistent about those definitions.

MARTIN: Cyrus, when you're deciding whether to move forward with a case involving someone who says that he or she - he or she, because men and women have made complaints - what is something you focus on? What are the kinds of details that these cases hinge upon?

MEHRI: Well, first of all I want to make sure our clients go into this with their eyes wide open, because I'll point out to them if you think the employer created your work environment to be a hostile work environment, wait until you see what they try to do with you in court, and they have to - we have to really caution our clients that the defendant, you know, Barbara's firm, you know, I have a tremendous amount of respect for them, but they will try to dig into every aspect of the person's prior life.

All their medical records, their psychological records, their family history.

MARTIN: Where would that be relevant?

MEHRI: Well, that's our question, and I feel that one of the things I'd like the courts to do more of is to create proper boundaries. They are entitled to have some discovery on the kinds of issues that we would be bringing forward, but where I feel that it's gone too far at times and where courts really have to weigh in is to really be protective of things that are just totally unrelevant...

MARTIN: Well, you know, in defending - in rape cases, for example, some states do have, as I understand it, certain boundaries about what can be discussed. Does that not exist in sexual harassment cases?

MEHRI: There should be more boundaries than there have been.

MARTIN: But you're saying there aren't?

MEHRI: I'd say that the defendants will try to go to the point where there aren't any boundaries and our job as plaintiff's counsel is to try to create some boundaries and with the help of the courts try to get some balance on those boundaries, because we don't want the courtroom to be another form of harassment.

MARTIN: Well, Barbara what about that? I mean, the critics of the way these cases ensue - you know, obviously people on both sides feel like it's just way too easy to make a complaint. You can complain about anything and anytime. This part of Herman Cain's argument, is that anybody can complain about anything anytime. On the other hand, there's criticism from people who think that the defenses are really built on assaulting someone's character. In fact, there's a name for it.

They call it - forgive me - the nuts and sluts defense - which is to make the complainant crazy, to bring her personal conduct into question. What about that?

BROWN: Well, there's several reasons why people's conduct is relevant to this. First of all, the standard for a hostile work environment is not just whether that person felt offended; it's whether a reasonable person in those circumstances would feel offended. And so if somebody is hypersensitive or they regularly make complaints about the kinds of workplace friction that are not sexual harassment - because the courts have made it very clear, Title Seven, the anti-harassment law, is not a civility code.

This is about conduct that's aimed at you because of your gender or because of your race or religion. So you've got to look at whether this person is hypersensitive. Often people claim terrible injury and stress from comments at work and then you see them laughing and having fun on Facebook. So we believe the courts have put boundaries on and we don't think we overstep them, but we do think that in this kind of complaint about a hostile environment there's lots of legitimate questions to be asked.

MARTIN: Cyrus what about that?

MEHRI: There are legitimate questions. My point is I think they go too far and they're too invasive and we have our duty to protect our clients.

MARTIN: If you're just joining us, this is TELL ME MORE from NPR News. I'm speaking with Cyrus Mehri, an attorney who's worked to litigate sexual harassment cases on behalf of employees. Also with us, Barbara Brown. She's an attorney who works to defend those accused of harassment in the workplace. We're talking about just what sexual harassment is.

Barbara, let me go to you first on this. Do you think that there is, just in terms of the juries you've faced, do you think that - you know, the legal standard, as Cyrus described it, seems somewhat clear, but is there wide variation what juries think sexual harassment is?

BROWN: No. I think most of these cases don't get to juries for the very reason that neither the plaintiff nor the employer really wants to litigate about what happened in the workplace, usually. The employers that I deal with usually - if somebody brings a complaint forward, they're going to look into it and, if they find that there was behavior, even if it didn't rise to the level that a judge or a jury would find harassment, it's got to be pervasive to be illegal harassment. That means - not that I make one comment to you today, but this is your work environment. Every day, you're facing it.

MARTIN: So if a person - and again, this is one of those difficult questions because, on the one hand, we want to give examples so people know what we're talking about. On the other hand, we're constrained by the level of detail that we can get into just for reasons of taste and so forth.

But if someone were - say an employer were to drop his pants, for example, in front of a woman and use some racial language or, you know, say in a rude way to, you know, perform a sex act. If it happened one time, is that harassment?

BROWN: If it's verbal - if it's not physical, if it's verbal one time, rarely ever do it - I mean, it's got to be so severe if it's just one time, almost like an assault or perhaps exposing yourself, something like that. But most of these cases do not involve conduct like that.

MARTIN: Cyrus?

MEHRI: But Michel, that's where I feel that we have to go back to the Supreme Court's decisions, which said severe or pervasive, not severe and pervasive. So picking up an example, Michel, like you talked about, there was a case...

MARTIN: And forgive me. I raised that because I saw that in a case. That's the reason I raised it.

MEHRI: Right. And that case is EOC versus Champion International and we can't go through the details of the facts, but what happened there was this woman saw this man there who's poking other female workers with a stick and she said, what's going on? And he said, well, why - you know, he scolded her for even raising any issue there so that he could control her career outcomes, took down his pants, referred to his bodily parts, talked about a sex act and threatened her physically.

The court there, buying the kind of logic you'll see from Barbara and the firm's defense firm saying that it was a one time only incident. So the court there said it wasn't severe enough and that it was deplorable, but not actionable.

MARTIN: So you're saying it's a very high standard?

MEHRI: It's a high standard, but I think that the common sense of the American public would say that that is severe and that's why it should go to a jury to decide.

MARTIN: Is that across the country, do you find, or do you find that different parts of the country have different standards, depending on where you are, for example, or depending on - what do you think?

MEHRI: I think that's pretty consistent around the country. That's a high standard.

MARTIN: We need to take a short break, but when we come back, we want to talk more about this and we've been talking about courtrooms so far, but I want to talk more about the public side of how this plays out and what people think, which brings us back to Herman Cain. We'll talk more about his case and what the public is learning about sexual harassment when we come back.

We'll have more with Cyrus Mehri and Barbara Brown. They are two very well-known attorneys who take opposite sides in sexual harassment cases and have actually faced each other. We'll have more. Please stay with us on TELL ME MORE from NPR News. I'm Michel Martin.

(SOUNDBITE OF MUSIC)

MARTIN: I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, he started his film career as an actor in India and then he went on to become a multi-Academy Award-nominated director in America. So now, Shekhar Kapur is back in India. We'll hear how he fashioned a career that's gone from Bollywood to Hollywood and back again. That's coming up.

But right now, we want to continue our conversation about sexual harassment in the workplace. We've been talking about what sexual harassment is. This is not only the 20th anniversary of the hearings held to assess these charges against now Supreme Court Associate Justice Clarence Thomas, but also, now against the GOP presidential contender Herman Cain. He's had to face reports that he sexually harassed several of his female subordinates while serving as the head of the National Restaurant Association in the last 1990s.

And, of course, Mr. Cain has vehemently denied these charges. Here's a clip.

HERMAN CAIN: I have never sexually harassed anyone and those accusations are totally false.

MARTIN: Cyrus Mehri and Barbara Brown are still with us. They're both well-known attorneys who deal with issues related to workplace discrimination, Cyrus working on behalf of plaintiffs or complainants and Barbara working on behalf of defendants.

So Barbara, I'm going to ask you. Does anything strike you about this so far? And I do understand that you don't represent Mr. Cain and just looking at it the way we're all looking at it, is there anything that strikes you about how he's handled this so far?

BROWN: Well, I don't know about how he's handled it, but in terms of the underlying allegations, usually when you have a group of people who are complaining and there's no reason to believe that they're in cahoots with each other and trying to get back at a supervisor they just don't like or something like that or all about to be laid off and looking for something to complain about - if none of that's true, then there's usually something to it. So I don't know anything about the facts here. I haven't looked into them, but when you have several people, it's usually a problem.

MARTIN: Cyrus, what do you think?

MEHRI: I think there's credible evidence of there being a problem.

MARTIN: Well, I wanted to ask you, then, given what we've covered so far, you know, none of these cases went to court. Is that relevant? I mean, the fact that there were settlements in two of the cases that we know of, is that relevant, Cyrus?

MEHRI: Well, I mean, the way I look at it is that Herman Cain kept his general counsel very busy because he was putting out one fire after another, settling one case after another, and some of the cases were never actually brought as cases and, therefore, they can speak publicly, like Sharon who came forward.

MARTIN: Well, so finally, in the couple of minutes that we have left, you know, we talked about the fact that, you know, 20 years ago after these Hill/Thomas hearings, which were, you know, riveting to people who follow politics and touched all kinds of buttons about, you know, race and sex and all of the above, that a lot of people said afterwards that they changed their mind about it because they were exposed to a discussion around this issue that they hadn't had before.

You know, I know in my workplace, for example, we had discussions about this that we had not had previously. So I'd like to ask each of you from your different perspectives, is there something you'd like the public to know as they evaluate this issue going forward? Cyrus:

MEHRI: Yes. I mean, I think this is a tremendous moment for us to have a reevaluation 20 years after the Thomas hearings. First of all, I think we have to remind ourselves - what is Title 7 about? It's about a merit-based system in the workplace and sexual harassment, whether it's a severe or pervasive hostile environment, or the quid pro quo type of harassment, erodes the merit-based system. So we have to uphold the value of this.

Second, I think there is a lesson where businesses in America can do a lot more than they have done. They haven't fully taken to heart, in our experience of investigating many companies, the internal mechanism of complain procedures that have integrity, that are independent, that really are a safe haven for people to go. That's what we need to focus on.

MARTIN: Barbara, a final thought from you?

BROWN: Well, I agree completely. I think that most employers have a strong policy and they have a good complaint procedure, but people don't come forward and people don't tell other people when they find the conversation offensive or unpleasant to them. And the key thing with these hostile environment situations is for people to speak up and say where their boundaries are.

Employers have the policies and people just need to take advantage of them because I think so much of this doesn't have to be intentional. So much of it is a matter of changing the workplace culture and we all have a role in that. And I hope everybody does see their own responsibility in it.

MARTIN: Speak up in the moment? Is that the key piece?

BROWN: Speak up in the moment because...

MARTIN: To the individual?

BROWN: To the individual if you can, or to the group if they're telling jokes you don't like. But if you can't do it there, then most employers have - and if they don't, they need to have - a very good separate complaint procedure, an anonymous hotline, a line to call HR. And they need to get in there promptly and they need to educate everybody about what the right standards are and that can go a long way to preventing the kinds of severe problems Cyrus was talking about.

MARTIN: Barbara Brown is a senior employment lawyer and chair of the Washington, D.C. office of the Paul Hastings Law Firm. She was kind enough to join us here in our Washington, D.C. studios, along with Cyrus Mehri. He's a partner at Mehri and Skalet. He's a civil rights attorney who specializes in workplace discrimination. He was also here in our Washington, D.C. studio.

Thank you both so much for speaking with us.

MEHRI: Thank you.

BROWN: Thank you for having us.

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