Wednesday, November 2, 2011

Allegations Won't Sink Herman Cain

Oh, Herman Cain. I knew they would find a way to dig up some dirt.

I just have to make a few comments about these sexual harassment allegations.

Yes, allegations. That is all they are. It’s incredibly easy to accuse someone of sexual harassment. You can accuse anyone of anything. Just yesterday a woman accused Justin Bieber of fathering her child. I know people who have been accused of sexual harassment, and I know they did not commit sexual harassment. Most people don’t know what sexual harassment means. It isn’t sexual harassment to make an off color or sexual joke in front of a woman. While it may be unprofessional and in bad taste, it isn’t illegal. It may not even be sexual harassment to flirt with someone or invite them to your hotel room. But, if you do it often enough (this is where the “harassment” aspect of it comes in), you could create a hostile work environment, which is illegal. It is unclear whether that is the case here.

At any rate, no sexual harassment was ever proven. That’s important to remember, especially considering that whether behavior is inappropriate or appropriate can be largely subjective. We all know people who get offended by every little thing, and people who get offended by nothing. 

I’d like to give my spin on some of the comments and questions I’ve seen floating around Internetland.

How could he not remember this?

Easy. It was fifteen years ago and he was the CEO of the National Restaurant Association. In other words, he was a very busy man, and probably wasn’t involved in the day to day dealings of the lawyers of the NRA. Likely the way it went down was the women went and complained, the NRA got their side of the story, the NRA got Herman Cain’s side of the story, and then the NRA lawyers decided what they were going to do about it. I highly doubt he was even involved in that decision, and may have never even followed up on it. If indeed Herman Cain felt he didn’t do anything wrong, I don’t find it strange at all that he doesn’t remember this, or didn’t follow up on it. In fact, I’d find it more likely that he did something wrong if he did remember, because he would have been worried about it.

But they paid the women off!  He must be guilty!

All we know so far about the settlements is that one woman got $35,000 – the equivalent of a year’s salary, and the other woman’s was also the five figure range. As a lawyer, I almost laughed when I saw that number. $35,000 is chump change in lawsuit land, and almost bordering on nuisance value. If they had paid her millions, I might think differently about the allegations. It would likely have cost the NRA at least $35,000 to answer a Complaint and to brief and file a motion to dismiss. It is not uncommon at all for companies to balance settling the case with how much money it will cost them to defend the case. Settling and paying money is not an admission of guilt. Often it is simply good business.

The woman isn’t allowed to tell her side of the story!  It's all a big secret!

Confidentiality provisions are common in settlements where money is handed over. I don’t think I’ve ever written a settlement agreement without a confidentiality provision. This is normal course of business stuff.

I frankly find it disgusting that someone’s name can be spread through the dirt based on unproven allegations. Given the huge spurt of donations to Cain’s campaign, it would seem that a lot of people agree with me.

1 comment:

  1. $35,000 almost seems like petty extortion. If I had be truly sexually harassed, I certainly wouldn't settle for that.
    I don't know what happened but I will be pretty pissed if the women's confidentiality clause gets revoked. She could lie her ass off.

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