In defense of Herman Cain

[d-ray657]

I don't pretend to know the underlying allegations in the one or two sexual harassment claims against Herman Cain. I do know that a settlement is not an admission of wrongdoing.

I have defended against and pursued claims of discrimination, including claims of sexual harassment. Most lawsuits settle, and most include a confidentiality agreement as a term of the settlement. They invariably include a non-admission provision. More often than not, a settlement means that the parties have weighed the risks, benefits and costs of pursuing litigation - both defendants and plaintiffs.

Sexual harassment claims are difficult to sustain, but also expensive to defend. To determine the bona fides of a sexual harassment claim, one has to examine the totality of the circumstances. A stray comment does not make out a case of sexual harassment, but one comment can certainly create the impression that sexual harassment has occurred. That is why there are more claimants than there are successful plaintiffs, and more settlements than there are successful defenses.

The legal theory of discrimination based on a sexually hostile environment - which is what most people refer to as sexual harassment - is a necessary tool to create equality on the workplace. One should not have to endure humiliating comments, offensive displays or unwelcome touching to maintain a job. Whether such conduct is intentional or not, it serves as a barrier to continued employment for women.

On the other hand, the law regarding sexual harassment or racial harassment does not require a workplace in which everyone's rough edges have been smoothed off. That's why the cause of action does not arise on the basis of stray comments. It is also why it is limited to unwelcome language or comments. Simply because a co-worker is vulgar does not mean that an employer (or union) is liable. The complaining party has some responsibility to allow others to understand his or her sensibilities before pursuing action.

It is not incredible for Herman Cain to not recall comments that were alleged to be offensive, and depending on the structure of the organization, to have little involvement with the resolution of legal claims. There are many reasons Herman Cain should not be president. These allegations do not appear to be among the reasons.

Regards,

D-Ray

[Twodogs]

Good post there, I learned a couple things. You know us guys on the right are just wishing we could have had that on Obama too (oh the screaming). To be very truthful, I was waiting on another shoe to fall, they always do. Pretty much everyone on the right has been saying that since Obama can't really run on his record, that he will mount an all out personal war on any Republican that appears to be a threat. To that, I say, what's fricking new? Both sides have done nothing but sling mud since the day they discovered it works, and works very well. Once again, the real blame lies squarely at the feet of the American people, who will eat any delicious dollop of dogshit that the media serves up. I pray that Mr. Cain will stand above these tactics and stay on issues, but I would realistically put those odds at around 0. What was it Gramps said about wrestling a pig?

[Charles]

That's mighty white of ya Don.

But being the eternal optimist (except when I'm tired and have a case of the ass), I prefer to look at the reasons WHY Cain should be POTUS as opposed as to why he shouldn't be.

As far as that goes, let's drop the elections and have lotteries. Whoever gets their name pulled out of the hat has the job, kind of like jury duty.

Could it be any worse?

Chas

[whell]

Don - very good post, and very accurate description of the utility of settlement agreements. I agree with you.

Predictably, Eugene Robinson does not agree with you.

http://www.realclearpolitics.com/art...ne_111892.html

[Twodogs]

Originally Posted by whell

Don - very good post, and very accurate description of the utility of settlement agreements. I agree with you.

Predictably, Eugene Robinson does not agree with you.

http://www.realclearpolitics.com/art...ne_111892.html

I like this part "If through some bizarre series of events he were actually elected president, the result would surely be an unmitigated disaster."

So what planet is this guy living on "now"?

[d-ray657]

Originally Posted by whell

Don - very good post, and very accurate description of the utility of settlement agreements. I agree with you.

Predictably, Eugene Robinson does not agree with you.

http://www.realclearpolitics.com/art...ne_111892.html

The main thing Robinson's article did is articulate some of the "other reasons" I mentioned why Cain should not be president, with which I agree. I disagree with him on whether releasing further details on the sexual harassment claims would clarify the situation.

The misunderstanding of the concept of sexual harassment is almost as widespread as the phrase's use. There is no way either the women who entered into the settlement or Cain would get a fair hearing if the details were released. Just as much as Cain bears the risk of being branded a sexual harasser, the women bear the risk of being branded liars or gold-diggers.

Sexual harassment is not a simple concept, as has been demonstrated by the numerous times the Supreme Court has taken up the subject, and countless trial and appellate court decisions. At the risk of being branded an arrogant lawyer (well duh) the press is not likely to do an adequate job of explaining it.

Regards,

D-Ray

[bhunter]

Originally Posted by d-ray657

The main thing Robinson's article did is articulate some of the "other reasons" I mentioned why Cain should not be president, with which I agree. I disagree with him on whether releasing further details on the sexual harassment claims would clarify the situation.

The misunderstanding of the concept of sexual harassment is almost as widespread as the phrase's use. There is no way either the women who entered into the settlement or Cain would get a fair hearing if the details were released. Just as much as Cain bears the risk of being branded a sexual harasser, the women bear the risk of being branded liars or gold-diggers.

Sexual harassment is not a simple concept, as has been demonstrated by the numerous times the Supreme Court has taken up the subject, and countless trial and appellate court decisions. At the risk of being branded an arrogant lawyer (well duh) the press is not likely to do an adequate job of explaining it.

Regards,

D-Ray

It seems like it would be somewhat arbitrary what does and does not constitute sexual harassment. I would tend to think that a lot of allegations are from disgruntled employees. Would you consider the Lewensky ordeal a form of harassment given the relative differences in power between the two parties? Does sexual harassment require one party to have significantly more power than the other?

[d-ray657]

Originally Posted by bhunter

It seems like it would be somewhat arbitrary what does and does not constitute sexual harassment. I would tend to think that a lot of allegations are from disgruntled employees. Would you consider the Lewensky ordeal a form of harassment given the relative differences in power between the two parties? Does sexual harassment require one party to have significantly more power than the other?

There are two theories of recovery in a sexual harassment claim: 1) sexually hostile atmosphere; and 2) quid pro quo harassment. The example you introduce with the Lewinsky drama is quid pro quo harassment. That claim arises when sexual favors are explicitly or implicitly made a term or condition of employment. The message is that if one (usually a female with a male boss) wants to advance, or ever retain a job, she needs to accommodate her boss. The claim arises when one suffers an adverse employment action from rebuffing an advance, or occasionally after a relationship with a higher-up ends. The theory does not outlaw relationships between supervisors and employees, but it does make them fraught with risk - as if they weren't anyway.

The sexually hostile atmosphere is what I discussed in the first post. liability arises when and employer causes or permits a sexually hostile atmosphere to exist in the workplace to the extent that it creates a barrier to employment for a female worker. There are plenty of nuances that go into determining whether a sexually hostile atmosphere exists or whether an employer is responsible for co-worker conduct, but it the determination is not arbitrary. There are standards, but the application of those standards can amount to a complicated analysis.

Regards,

D-Ray

[JJIII]

Don, you have proven once again that you are a fair man. A little misguided sometimes, but a fair man. Thanks for the insight.

[wgrr]

I think Cain has a much bigger problem brewing.

http://thecaucus.blogs.nytimes.com/2...r-herman-cain/

This has Roves hands all over it. He does not like Cain.

Butter Cain up he is toast.