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.


9 Responses to The Mark of Cain

  1. arizonaplatt says:

    This all reminds me so much of the treatment that Clarence Thomas received prior to his confirmation.

    • wda says:

      Except that the plaintiff’s claims were initiated in the 1990’s.

      This in no way resembles the treatment Clarence Thomas recieved.

      If you need more illustration, let me know.

  2. Scott Jacobs says:

    It is also interesting the reactions from both Left and Right when the current actions and words about Cain are compared to someone on the Left who actually sexually assaulted someone.

  3. smurfy says:

    My advice to Mr. Cain: don’t shit where you eat. If you absolutely must hit on a chick you work with, make damn sure you’re getting vibes from her first.

  4. wda says:

    “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.”

    I don’t see that as practically working out at all.

    Can you expand upon this theory. How does a breach of a confidentiality agreement lead to liability when an opposing party breaches it?

    Shouldn’t Cain, if he’d like to keep the confidentiality agreement in place, have said that he could not comment?

    Of course it all depends upon the contract terms, but mostly I have seen those terms to be neutral where no one party recieves a greater right than the other in disclosing information.

    Any thoughts?

    • Jay Wolman says:

      Having acted as an employment mediator and an employment lawyer in a large number of cases, I have seen that the majority of releases are one-sided when it comes to confidentiality. Part of the consideration for the $ is the employee’s confidentiality.Typically, the employer is free to speak out, whereas the complainant is not.

      That said, if a tabloid pays her enough to cover her losses for breach, it may be worth her while.

  5. wda says:

    “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.”

    Can you please explain the difference between a “non-disparagement clause” and a “neutral reference clause?”

    As a litigator they both seem the same to me.

    Should I laugh?

    • Jay Wolman says:

      I’m not sure at what you’re laughing. Perhaps, as a litigator, you don’t handle many employment matters. If you do, then perhaps this is an issue you simply haven’t had the opportunity to explore. That said, typical employment releases contain a clause prohibiting the complainant employee from broadly speaking about the employer in a negative light. Whether it is about the products, employees, customers, vendors, services, marketing, or stock value, a non-disparagement clause would serve to prohibit the employee from speaking. In fact, many companies are taking a proactive stance and requiring non-disparagement agreements at the time of hire, usually along with non-compete agreements.

      A neutral reference clause, on the other hand, is typically one where the employer, if contacted by a prospective future employer or recruiter of the employee, will only divulge dates of hire, position, and salary. It typically does not restrain the employer from speaking to other persons about the employee who are not prospective employers or recruiters.

      Now you know, and knowing is half the battle.

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