Did Herman Cain sexually harass two women while heading the National Restaurant Association? That question has fixated the national news media over the past few days, and while we do not know the details of the predicate sexual harassment allegations, there are a number of reasons to believe that they might have merit:
1. According to the New York Times, two separate women accused Herman Cain of harassment concerning separate incidents, and both claims settled.
What is the likelihood that both women fabricated their allegations? Of course it’s possible that both women were con artists, but the greater the number of accusers, the greater the likelihood that they are telling the truth. Imagine if 17 separate women came forward accusing Herman Cain of sexual harassment, would there be any doubt as to whom we presume is telling the truth when Mr. Cain denies the allegations? Just as with the 9-11 truthers, at some point the conspiracy (to shake down Mr. Cain) gets so large, and would have to involve so many people, that it becomes implausible absent direct evidence.
That the two women alleged separate incidents of harassment also bolsters their allegations. In legal terms, either woman could point to the other’s allegations as evidence of Mr. Cain’s similar treatment towards members of the protected class (women), which strengthens the claim that the conduct they were subjected to was motivated by their gender (rather than by a non-discriminatory reason, as in the case of an innocent misunderstanding), or the credibility of their allegations in a more general sense. Moreover, the more separate incidents are alleged, the greater the likelihood that there were bystanders who could corroborate either the accuser’s or Mr. Cain’s version of the events. Or conversely, it would be dangerous for the accusers to allege many separate incidents, but that each time there conveniently were no third parties present;
2. The fact that both women settled their claims tells us a little, but not much, about the merits of their claims. The size of the settlement is somewhat probative of the merit of the allegations, as defendants are loathe to settle based merely upon the cost of defense when a case is really weak and likely to lose on a motion to dismiss or summary judgment. We don’t know the actual size of the settlements, but Mr. Cain has alleged they were around the order of three months salary. A lawyer for one of the accusers, however, has made clear that the size of the settlement is disputed: “He’s basically saying: ‘I never harassed anyone. These claims have no merit and we gave them a pittance.’ I’m sure my client would have a comeback to that,” Mr. Bennett said.
*Update:
It’s just come out that one of the accusers supposedly settled her claim for a year’s salary: $35,000 in late 1990s dollars. Quite frankly, no one gets an entire year’s salary in severance based upon garbage discrimination claims, especially without at least filing an EEOC claim.
We can infer from the size of the employee’s salary that she was not a high-ranking executive. For whatever reason, it is common knowledge among the employment bar that the lower you are in the corporate food chain, the harder it is to extract a settlement, especially without filing suit and engaging in the concomitant war of attrition that is litigation. A source in the New York Times article cited above also indicates that this individual had not been with the company for very long, therefore it is fair to attribute the size of the payment as in exchange for a release of the sexual harassment claims rather than as some sort of sweetener-severance for many years of service.
Moreover, the accuser’s attorney – Joel P. Bennett – made his comments about the size of the settlement in the context of his client wanting to speak on the matter and lay out what exactly her allegations were in light of Mr. Cain’s strong public denials. I very much doubt that a plaintiff who fabricated a sexual harassment claim but nonetheless received a monetary settlement many years ago would want to inject themselves into a national controversy and run the risk that their gambit would be exposed by prying journalists.
If the settlement agreement contains a bilateral confidentiality clause, Mr. Cain has likely violated it already. And if that is the case, his cavalier attitude towards his contractual obligations might tell us something about his attitude towards compliance with anti-discrimination statutes. I’m frankly shocked that Mr. Cain has openly discussed (his version) of at least one of the comments he made, which leads us to;
3. Herman Cain’s explanation of what he actually said stinks to high heaven: “I referenced this lady’s height, and I was standing near her, and I did this saying, ‘You’re the same height of my wife,’ because my wife is five feet tall, and she comes up to my chin. This lady’s five feet tall, and she comes up to my chin.” He said, “So obviously she thought that that was too close for comfort.”
Really? I find it hard to believe that any woman would perceive a comment that she was the same height as a male supervisor’s wife as sexual harassment in it of itself. And then to act on that thought and expend the time and money to hire an attorney? Moreover, the attorney would presumably also would take a contingency fee of her recovery, and therefore would likely not take a case where that’s the type of comment alleged. I don’t know any plaintiff side employment attorney who would take a case where the alleged harassing comments are so neutral on their face.
It’s much more likely that Mr. Cain’s story is an effort to blunt his accuser’s allegation without denying that any comment was made at all (perhaps because 3rd parties were present who would contravert that nothing was said period). It’s common practice in discrimination cases that the accused claim that the actual comment they made was somewhat similar to what the accuser articulated, but lacking the discriminatory or explicit element. That way, whoever is judging which party is telling the truth only needs to believe that the accuser overreacted, rather than that they are an outright liar, in order to side with the accused. In this instance, I could very easily see the accuser having claimed that Mr. Cain said something more along the lines of “You’re the same height as my wife – and that’s just my size”, or something to that effect. In which case, the innuendo would be obvious.
Indeed, sexual harassers often believe that their victims simply took a joke too seriously, or that they have simply been misunderstood. It’s part of the arrogance that leads them to harass in the first place. And if there’s one thing we know about Herman Cain, he possesses that personality defect in spades.
-New York City Employment Lawyer
