The news about both Dominique Strauss-Kahn and Arnold Schwarzenegger has brought renewed attention to what seems like a myriad of past allegations of sexual harassment by the two politicians. Strauss-Kahn and Schwarzenegger have also both now acknowledged relationships with women who worked for them.
So, when something happens between a boss and employee, whereâ€™s the line between harassment and a consensual relationship? It turns out the law isnâ€™t as clear as you might think.
In the United States, certain situations are considered inherently coercive. For instance, sexual contact between prison guards and inmatesâ€”even if itâ€™s entirely consensualâ€”is sexual abuse by definition. However, laws governing the workplace are far more permissive, though companies may adopt their own, more stringent policies.
Under U.S. federal anti-discrimination law, sexual advances or comments in the workplace arenâ€™t necessarily against the law, and thatâ€™s even if thereâ€™s a big power gap at play, Ernest Haffner, a senior attorney at the governmentâ€™s Equal Employment Opportunity Commission, told me.
â€œIf that were true, a romantic relationship could never be consensual or welcome in a particular workplace,â€ Haffner said. â€œI donâ€™t think case law supports that.â€
Instead, the test is whether the sexual comments or conduct was unwelcome. Sound simple? Not so fast.
Experts say there arenâ€™t hard-and-fast rules for judging whether conduct is unwelcome. â€œUnwelcomeness is tricky,â€ said Haffner. â€œThe person may subjectively believe that the conduct is unwelcome, but you have to objectively be able to show it.â€
In some cases, a person may be able to show that advances were unwelcome even though he or she didnâ€™t protest or say so at the time. â€œConsensualâ€ isnâ€™t the same thing as â€welcome,â€ experts say. It all comes down to a close analysis of any given situation.
Lawyers told us that power dynamics can be a factor. Past history between the two people can also be a factor. Even body language can be a factor.
â€œThe bright line is it being unwelcome, but the facts that make that up are really going to depend on the circumstances,â€ said Fatima Graves of the National Womenâ€™s Law Center, noting that courts have ruled differently. â€œSome courts have said that itâ€™s important for the employee to communicate clearly that it is unwelcome,â€ Graves noted.
Thatâ€™s why the government and anti-discrimination groups encourage people who believe theyâ€™re being harassed to inform the harasser directly that the advances, comments or conduct are unwelcome. Legal Momentum, a womenâ€™s rights group, warns the targets of harassment, â€œYour legal claims can be hurt if you keep silent.â€ It also provides a sample letter [PDF] to send to a harasser, suggests reporting the harassment to the company and recommends holding on to all records documenting the harassment itself and complaints about it.
Once itâ€™s established that the conduct was sexual harassment, itâ€™s up to the company to prove that itâ€™s not liable. If the harasser was in a supervisory role, the company is almost always liable, though companies can try to argue that the person didnâ€™t make use of internal channels to report the harassment or waited too long to do so.
Under U.S. anti-discrimination lawâ€”civil statutesâ€”there are caps on how much companies can be forced to pay if the case goes to trial. Theyâ€™re based on the size of the companyâ€”and awards for even the largest companies are capped at $300,000, though this doesnâ€™t include compensation for, say, medical or therapy expenses incurred as a result of the harassment.
More often than not, however, these cases will settle out of court. President Bill Clinton famously paid Paula Jones $850,000 to make her sexual harassment lawsuit go away, with no apology or admission of guilt needed on Clintonâ€™s part. Just last year, former Hewlett-Packard CEO Mark Hurd settled for an undisclosed amount a sexual harassment claim brought by a company contractor.
Not all workers in the United States are covered by federal sexual harassment laws, however. The housekeeper with whom Schwarzenegger fathered a child out of wedlock, for instance, most likely was not.
â€œYou have to have so many employees before youâ€™re covered,â€ said Michelle Caiola, a senior attorney at Legal Momentum who previously worked for the governmentâ€™s EEOC. â€œBeing an employer of one person in a householdâ€”that wouldnâ€™t be covered.â€
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