A reader writes:
I am a management side employment lawyer, so I have all those anti-plaintiff biases, but also over 15 years practicing in this area. I am no fan of Cain, but I think you are moving way too fast on this one.
Remember that the vast, vast majority of these claims are settled without regard to the merit of the charge because the costs of defense just don’t justify litigating them. You can blame defense lawyer fees, but potential bad publicity and a need to avoid the distraction from the mission entailed in a divisive trial are also motivators. As such, it is simply not true that a financial payment is a “clear indication” of behavior that bordered or crossed the line. Again, it may play out that way, but a payment by itself is a sign of an organization that chose to avoid the litigation route, period. Even allegations that do not border on legal sexual harassment are routinely settled in this manner.
(I will grant that the amount of the settlement usually bears some correlation to the perceived merit of the allegations, so we should be on the lookout for any reporting there, but for a public organization like the Restaurant Association, I would not ascribe any real concern to a number below $75,000 and even then, there could be factors other than the merit that drove the number up.) Moreover, most of these cases are settled on terms that require both sides to remain silent.
Obviously, Cain’s silence when asked about being accused could be the sign of a guilty conscience, but it could also be the reaction of someone who knows that (1) he’s contractually bound not to speak to this topic and (2) speaking could open the door to the plaintiff’s right to respond in kind. No question that he’s trying to weigh the political calculus too, but we should not conflate the “have you ever been accused” question with the “did you do it” question. It is by no means clear that he will have to “cop to” sexual harassment – only having been accused.
Finally, you are correct that people who are willing to sexually harass co-workers are frequently repeat offenders – so, yes, there could be more accusers coming IF he was guilty the first time. But just keep in mind that his conduct so far doesn’t tell us much one way or the other.
Very helpful context. My point about the payments being some kind of proof of impropriety probably shouldn't stand.
The Dish 