03 Nov The Mark of Cain
Looks like Herman Cain is having a three way and not in the awesome sense. A third woman has reportedly come forward with an allegation that Mr. Cain acted inappropriately toward her. While I’m sure someday Mark might take a pro-sexual harassment case to the Supreme Court, arguing for the 1st Amendment right to be saucy, for now it is considered unlawful.
A side note to political candidates: if you have a skeleton or three in your closet, reveal it yourself. It will come out and you want to control the message.
Sexual harassment is a fascinating area of the law. Sometimes, and rarely, it is blatant quid pro quo, the old casting couch. Most times, it is something said that offended the listener, with some sexual or gender based content, that is deemed to have gone too far. It’s like pornography, Rule 34 aside, you generally know it when you see it. The hard fought cases are the ones where it is less clear. According to the article:
she said Cain told her that he had confided to colleagues how attractive she was and invited her to his corporate apartment outside work.
Maybe that implied he wanted to sleep with her. Maybe he was paying her a compliment and the invitation was platonic or business related. President Obama is an attractive man and I’d welcome him to dinner at my house. It doesn’t mean I want to become the First Lady by proxy. As to the complaint Mr. Cain “settled” or reached an “agreement” on (synonyms to me, different to him), he states that it was about a comparison he made of a female coworker to the height of his wife. If that was a pickup line, it is the worst ever; what woman gets turned on by a man who compares her to his wife? I’m pretty sure that violates Ashley Madison’s own standards. But, she may have taken it as such, and maybe that is what he intended. There may be more to it, but he isn’t talking and she is bound by a confidentiality agreement. Given both of these, and whatever the third is, you can see why these cases take a lot of lawyering.
As to the two that settled, it sounds like a year’s severance was given for one, and the other got something confidential. A year’s severance is a pretty nice package; it’s not nuisance. Confidentiality, on the other hand, does not imply a large settlement; some companies demand it even for nuisance suits. They don’t want to set any form of precedent.
Some commenters have suggested she breach the confidentiality clause. That is a huge no-no. She’d likely have to repay the money, and the statute of limitations has run on filing a claim. Plus, she’d probably owe attorneys’ fees. And we’ve all seen how much it sucks to be hit with attorneys’ fees. Others have suggested Mr. Cain is violating a non-disparagement clause. My guess is: no. Like confidentiality clauses, these are typically one sided. An employee might get a neutral reference clause, but it usually isn’t as broad as the non-disparagement clause given to the employer.
My advice to Mr. Cain: don’t blame Gov. Perry or Romney. Air your dirty laundry now. And watch what you say in the future. I don’t want to hear any claim that “is” is ambiguous.