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Cain Allegations: No There There

By: Curt Levey (Diary)  |  October 31st, 2011 at 09:01 AM  | 

RESIZE: AAA

In light of last night’s Politico story about allegations against Herman Cain, it is important to clarify the legal meaning of the term “sexual harassment.” Specifically, Politico reports allegations that Herman Cain made an “an unwanted sexual advance” and engaged in “innuendo or personal questions of a sexually suggestive nature.” Politico suggests that this amounts to sexual harassment, using the term at least six times.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are “sufficiently severe or pervasive” to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that “sexual attraction may often play a role in the day-to-day social exchange between employees” and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Trivializing the term “sexual harassment” undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Cross-posted at the Committee for Justice blog.

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COMMENTS

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  • daveoconnor

    the Politico story. Politico’s Martin was on MSNBC this am and made much of the fact that the Cain campaign had ten days to respond and did not.
    But respond to what? Martin said Politico could not give out the names of the women and also would not give details of the accusations. Thus it’s an allegation of an allegation which like an agreement to agree is legally worthless.
    Awful stuff.

  • gator_hoo

    I would dismiss this as nothing, except Cain and his staff have botched the response to this so badly, they have given the impression that there is something to it.

    When first asked about it, Cain’s response was to not answer the question. When the question was repeated, he snapped back, “Have you ever been accused of sexual harassment?”. Then the campaigns official response consisted of nothing that could be termed a clear, outright denial. The closest statement to that is that the allegations didn’t stand up to the facts, but in politics, that statement is a mile away from, “Mr. Cain did nothing wrong.”.

    Finally, on Geraldo, Cain’s spokesperson repeatedly dodged the question of “Do you deny these allegations?”

    None of this is to say that the allegations are true. However, the fact that Cain has so poorly responded means that it is not going away anytime soon.

    • http://nerds4cain.com Brookhaven

      If you’ve never beaten your wife, but fail to give a “proper response” to what is a trick question it’s somehow your fault?

      • streiff

        Cain was confronted with the allegations and the name of one of the accusers. He essentially said “Look! Over there!”

        • gator_hoo

          Besides, the “when did you stop beating your wife?” question also has a simple answer. “I have never beat my wife.” CONTROVERSY!

    • 1bunny

      Cain’s team had 10 days to sit down and come up with a well crafted response, the fact that this response is what they come out with is terrible. Especially his campaign manager’s incompetent non response on Geraldo last night. Does no one working for Cain know how to manage a campaign? Whether they are true or false allegations how they have been handled shows me that Cain is not ready for prime time.

  • mariagomez

    Erick, what is your opinion regarding Perry’s recent speech in New Hampshire?

    Regarding Cain, I think that he is probably innocent of the charges, but his campaign has completely botched the response. The campaign should have been ready for these accusations and I don’t understand why they did not already have a damage control plan in place.

  • johnt

    “We love ya Bill”. Another blockbuster from our progressives in the media, struggling to help the Democrats destroy what’s left of America. And I thought the Rubio bombshell was big, I mean really, when were his parents in, or not in Cuba? I don’t know if my nervous system can take much more. What next? Obama is a racist who spent 20 years in a screaming racist church? Can’t be !
    Faced with the utter failure of statist thug politics and kleptomaniac economics what else can deep thinkers, not stupid like us, do but wallow in filth, their natural and inevitable habitat.

  • tngal

    My candidate has an endearing quality of speaking his mind, Like when he told the OWS crowd to “go home, get a job, get a life”.

    Tell me we haven’t thought about saying the same thing. Cain has always said he wasn PC. He campaigns on it. Yeah he might have offended these women (lord knows he’s offended a few others) but offending and harassing are two different classifications.

    For crying out loud Obama has offended my intelligence on more than one occassion, and don’t get me started on Pelosi.

  • tailfins1959

    False sexual harassment accusations is an important issue. This is just amazing, even after two decades, the left can’t resist using the Clarence Thomas template.

  • lizcarter

    NO Candidate deserves ANYTHING, when you run for POTUS, you address and or refute information and claims that arise during the vetting process.

    Sorry, I’m really sick of the double standard and hypocrisy of some the campaigns and supporters. We already have one great speaker with Teflon.

    This allegation needs to be refuted, if not it goes directly to his ability to lead an organization. If this is true, this will be the second lawsuit payout that Cain has been involved in. In the business world, that’s a management bailout for bad behavior that costs the company and its shareholders.

    Wake up people.

  • streiff

    charitably, that is what this story amounts to.

    Cain’s question to the reporter, “Have you ever been accused of sexual harassment?” was a non sequitur because the reporter is not trying to become president.

    I personally don’t care if Cain’s actions crossed the threshold established by the Supreme Court, I do care if as many as five women left the association, some with cash settlements, because of his action.

    The least we can do here is give the Romney campaign credit for focusing the media on something that may be pertinent rather than the absurd “N*****head rock” story.

  • daveoconnor

    AP has the response which denies the accusations. You can read it on the Christian Science Monitor site for one.
    As a former newspaper and broadcast reporter I can tell you this is a political hit job pure and simple.
    You can be sure someone fed this to Politico; they didn’t “dig” for it. And that someone didn’t do it because “sexual harassment” bothers them. They did it to hurt Cain.
    No matter how well or definitively Cain denies the accusation the media will run with it. The accusation itself is of the Star Chamber variety. IMHO Cain should demand particulars with t’s crossed and I’s dotted. Even if two women were offended as reported the average voter won’t be bothered. It’s easily recognized as a political dirty trick.

    • streiff

      the reaction hardly inspires confidence that it isn’t substantive:

      Cain said he has ?had thousands of people working for me? at different businesses over the years and could not comment ?until I see some facts or some concrete evidence.? His campaign staff was given the name of one woman who complained last week, and it was repeated to Cain on Sunday. He responded, ?I am not going to comment on that.?

      How’s that for a Winning The Future answer? I won’t comment until I see some evidence and when I see the evidence I won’t comment on it.

      • conservativemusician

        And then Cain will say we misunderstood him and then tell us to go to some web site to get the real story. Don’t know if the story is true or not, but if he paid these women off, then I think Cain is going to have a hard time getting out of this one.

  • daveoconnor

    Really. Cost an organization money? You mean like $800 plus billion for a so-called stimulus package that utterly failed? You mean giving half a billion to a company about to go bankrupt?
    I’m not only wide awake I am thinking. Try it sometime.

  • sbm1

    I have to say, spouting off those Chocolate Walnut type lines borders on harassment….not sure if it is sexual…just reminds me a bit of eddie murphy’s “sexual chocolate” act….

    I don’t believe that Cain is actually fiscally conservative…which means when they pull out the “poor people suffering because of government cutbacks” he seems like the type who would back off the “hard cuts”…not that I trust Romney or Perry to have the conviction to fight through those attacks either.

    I don’t believe he is fiscally conservative because he wasn’t last time he ran, and because of some recent comments about the 9-9-9 being a 9-0-9….He wants to be liked too much.

    Is it too late to maybe get Jeb Bush in the race?

  • tricianc

    I gave no credibility to the Politico story on Mr. Cain’s sexual harassment story until this:

    When asked if he’d ever been accused of sexual harassment, Cain hesitated for several seconds and said, “Have YOU ever been accused of sexual harassment?” Cain also said he wouldn’t comment as didn’t know the names of the women. Huh? How many where there?

    This left his answer as a Yes and gave the story credence. If it had been untrue, he would have said a resounding NO. He left it with a Yes, and no explanation. He could have said, “Yes, but it was a misunderstanding and was settled.” Then when asked why a five-figure payout was made, he could have said “We settled because we didn’t want our reputation damaged
    and it could take years in court.” Something of that sort. But Mr. Cain left it open for more uncertainty and scrutiny. He could have stopped it right there dead in it’s tracks. This is the mark of a poor campaign strategy. You stop the story in it’s tracks, you don’t keep giving it legs.

    I think it may be true but Mr. Cain is uncertain as to hoaw to handle it. Remember, it’s the cover up, not the crime.

    The other incident that concerns me and tells me it’s probably true is Cain’s campaign manager called into the Geraldo show and refused to deny the allegations. Geraldo even told him this will certainly further hurt Mr. Cain, and will hit the next day’s papers but that he could address it right now. He asked him several times if he denied the allegations. Why did Mr. Cain’s manager call in if not to defend or clarify? I think he made it worse.

    Also, if what is being reported doesn’t constitute sexual harassment, as this article here at Redstate states, why pay them off? It would have been immediately dismissed immediately in court.

    Oh, but don’t worry, he’ll pull an Obama and either give a brief speech or go to a news friendly to give his side, both venues of which will be unchallenged.

  • daveoconnor

    don’t really think they are Conservative. Let’s see we have at least two who hold that an allegation of an allegation has to be specifically denied. Deny who? Deny what? Who was paid? Why were they paid?
    To be a Conservative requires some rigor of thought. It requires some substantial reading.
    Not everyone here gives evidence of doing the thinking or work. They mistake assertion for arguement. They name call.
    I recently saw an arguement (assertion) that if you weren’t from Texas you didn’t know squat about border issues. Wow that propels the conversation forward. I guess maybe talking to a border patrol type or doing some study just doesn’t match the knowlege of border problems one derives just by living in Texas. It’s like osmosis.
    And along the same lines if Politico…Politico! prints an allegation of an allegation why you better give a full and complete rebuttal in less than 24 hours. Yeah, that’s real Conservative thinking.
    No it isn’t Conservative and it isn’t thinking. It’s reacting. Okay let the illogical comments begin.

  • tricianc

    Cain was told 10 days ago this was coming out. Why didn’t he get in front of it or at least be prepared with a plan to address?

    But not to comment leaving it out there is a terrible strategy. Then when Cain was directly confronted, said he wouldn’t comment until he knew the names, then when given a name, said wouldn’t comment. huh? His campaign was given one of the women’s names 10 days ago.

    All the chances he and his camp have had to either deny or address it has been highly mismanaged.

    The one denial his camp made was by someone saying “To the best of my knowledge…” This is a typical political response when caught and a “It depends what the definition of the word is is” answer, covering your own a$$ without denying or admitting.

    Now, he’ll pull an Obama and either address it unchallenged in a brief statement, speech or to a news friendly.

    However, if he comes out now and says a settlement was made, whether the allegations are true or not (which he will still have to deny if they’re true) after avoiding it for two days, it will give additional credibility to the story and Politico. He should have nipped it in the bud immediately.

    But the fact is he and his campaign handled this terribly. It will also leave a doubt in people’s mind of his integrity and whether since we know so little about him, if this is the last surprise.

    • tngal

      Lets say YOU signed a non disclosure agreement years ago regarding something similar. You and anybody else involved.

      And ten days ago some reporter says we’ve been told by sources this matter occured.

      Could you talk about it ??? With a non disclosure agreement in place?

      He can’t come out in front.

      He can’t say “in the near future you may hear some allegations about me that sound bad. They’re not as bad as you think. I can’t go in the details because of non disclosure. So , just giving you a heads up on that.”

      I don’t think ten days ago he could’ve mentioned words like inuendo and gesture. Politico can. But the silence clause would have forbid him from doing it.

      I’m not a lawyer so I don’t know what he is legally allowed to say at this point.

      PS.. he’s allready denied harassment allegations. So show me the stained dress.

      • streiff

        Cain this morning

        Republican presidential candidate Herman Cain admitted Monday to being accused of sexual harassment while at the helm of the National Restaurant Association in the 1990s, but denied ever engaging in such activity.
        Cain, responding during an appearance on Fox News to a story that said he had settled two sexual harassment claims against him while at the NRA, said that an investigation into those allegations proved them to be “totally baseless.”
        “I have never sexual harassed anyone, and yes, I was falsely accused while I was at the National Restaurant Association,” Cain said in the interview, his first comments on the Politico story from Sunday. “I say falsely because it turned out, after the investigation, to be baseless.”
        Cain sought to forcefully dispute the story, which said Cain had been accused of sexually suggestive behavior toward at least two female employees during his time as head of the restaurant lobby.

        Now he says the allegation was false and there was an investigation. Why didn’t he say this yesterday.

        • tricianc

          Not to mention, it’s awfully easy to do when you speak out in an unchallenged venue.

        • tngal

          And his campaign did deny the allegations last night and said he was falsely accused.

          And as this morning’s comment state’s:

          ?I say falsely because it turned out, after the investigation, to be baseless.?

          This story is more in depth. Maybe he was calling the association and asking..”hey did you all actually agree to a settlement with these people? Cause i didn’t.”

          If you don’t want to vote for him based on this ev idence alone. Please don’t. You’ll sleep better. But unless you’ve got a stained dress, you’re not offerring up much.

      • tricianc

        And actually, the non-disclosure agreement was on the women, not Mr. Cain.

        But let’s say it was on him…You’re saying that he cannot comment on it? Fine. Then why did he just come out and comment?

        You can’t have it both ways.

      • tricianc

        I never said the Politico story was true. I said that Cain handled it badly, especially if it isn’t true. A straight out denial if it’s not true was the way to handle it.

        As far as non-disclosure: it was on the women, not him. Besides, if it was on him, then why did he just come out with a comment?

        You can’t have it both ways.

      • retire05

        The women were bound by the non-disclosure clause, not Herman Cain. He would have not been required to sign a non-disclosure agreement since he was the accused party. His campaign, we learn now, has been aware of this pending story for 10 days. His campaign should have gotten out in front of it, but they didn’t.

        Also, his quippy response to a reporter “Have you ever been accused of sexual harrassment?” is not a response. His campaign manager was pathetic on Geraldo last night, causing more questions than giving answers.

        Now, today, Cain is trying to get out in front of the story with a solid denial of any wrong doing. The problem with that is now we know there WERE accusations of sexual harrassment while he was with the National Restaurant Association. So that part of the Politico story holds true.

        It is not going to matter if a month from now, the NRA decides to release the non-disclosure agreement and give all the documents involved in this story. The headlines are today, and that is what people are going to remember. Also, women tend to believe the women who makes these claims, not the man being accused. So Cain is going to spend the next week denying these accusations. And that takes him off message.

        Like it or not, the “perception” of wrong doing can sink Cain’s campaign. When Carl Cameron reported that G.W. Bush had gotten a DWI in his youth, it almost derailed his campaign. This is worse than a DWI.

        • tngal

          I would highlight, underscore, and bold up the world almost on GW.

          Look I can accuse you right now of harassment. Pull out a quote of something you said somehwere and accuse you.

          You can deny.

          Fine. So be it. Then I go to Erick and scream Retire harrassed me!! He made a gesture and he nuanced!! And an investigation by Moe or Erick or whoever ensues. They determine there was no basis for my allegation. (I may have took it as harassment but Moe and Erick determined there wasn’t enough legal basis.) But agree to pay me off to keep the site clean and shut me up.

          Did you know I went to Moe and Erick? Probably. Did you know there was an investigation? Probably, because you’ve been told its baseless. Now, its coming out they paid me a relatively small severance settlement to leave. And as the accussee I could care less as I now have cash in hand.

          • retire05

            I expected better from you.

            The facts remain: Cain tried to brush off questions about the issue last night. His campaign manager called into the Geraldo show and made things worse, not better, The Cain campaign has known this story was going to break for at least 10 days. They should have been out in front of it. They weren’t. Cain now admits there WERE accusations, but they were false. He is claiming that as head of the NRA he was not aware of any settlements or argeements. You can buy into that response, if you want, but that dog won’t hunt. No head of a group (and Cain was the head of that group) as large as the NRA who has been accused of wrong doing is going to be unaware of any settlement or resolution of the accusations.

            Nice try but no golden ring.

          • tngal

            I’ve answered this to others. They said last night they were baseless. They’ve just gotten more in depth.

            Now NBC comes out with a story saying they’ve confirmed one woman got paid. Not two as politico led to believe. One. Wow. This thin piece of guaze is getting thinner.

            Get a handle on the facts.

            There’s also been interviews this morning on the web with those involved in his 2008 campaign. Secretaries and staffers and they didn’t know about this. These are people he would warned back then if he thought there was substance to this story.

            http://firstread.msnbc.msn.com/_news/2011/10/31/8563824-nbc-confirms-one-cain-accuser-received-cash-settlement

          • retire05

            dalliances unless he told them?

            There is smoke in this story as Cain has already admitted he was “accused” of wrong doing. The claim that Cain, as head of the National Restaurant Associon didn’t know of any settlement, does’t hold water. It’s bull.

            So…………….NBC has reported that they can confirm at least one woman was paid to go away and shut up. That makes the Politico story as least true, in part.
            And Politico say “at least two”, not “two.”

            If you are going to defend Cain, you better learn to get your facts straight. So far, you’re batting zero.

  • explodinghead

    Cain is not under any binding agreement not to comment. Therefore he should put out the exact nature of the allegations, what the claims were, what he supposedly said or did and why he settled. If it was on advice of the General Counsel then he should say so. If he puts out exactly what the 2 women found offensive, then the American people can judge if they would have been offended or if it was inappropriate. By not giving full disclosure, he leaves a quesiton mark and the MSM will continue to use it against him. Come out now with the full and complete details and let the people judge for themselves if they are comfortable voting for him.

    • Tbone

      Are you a fool or liar?

      How can you know this? You can’t.

      As CEO, Cain is of course bound by an NDA entered into by the NRA. In fact, he should have signed it and if he didn’t, the Board would have specifically authorized, through Board Resolution, another officer to sign it on behalf of the Corporation.

      • gator_hoo

        Then it is perfectly true that he is under no binding obligation not to comment, and any agreement to that effect is not binding as a matter of law.

        • Tbone

          would address this type of situation.

          It beggars belief that if the settlement was done during his tenure that he would be unaware of it and it beggars belief that if it was done afterwards that counsel would not have made him an actual party to it.

          My only conclusion is that he is lying about not knowing about the settlement.

  • tricianc

    I never said the Politico story was true. I said that Cain handled it badly, especially if it isn?t true. A straight out denial if it?s not true was the way to handle it.

    I also said the way he handled it, left the doubt out there. I could only guess why and give my perspective on it.

    As far as non-disclosure: it was on the women, not him. Besides, if it was on him, then why did he just come out with a comment? So, obviously the non-disclosure wasn’t the reason he didn’t answer sooner.

    You can?t have it both ways.

    Then if you want to go with the non-disclosure thingie…then you can’t prove he didn’t either as the women can’t talk.

    • tngal

      Politico has their story up and mention that the cmapaign is working on scheduling an interview with Gloria (herman’s wife). She is not a front and center person in his campaign. She doesn’t seek attention. Maybe she will have some insight into this.

  • center77

    First, Cain has said he will not address the story again until his accusers come out and say it happen, which is just wrong because he knows they cannot do this, but by saying what he said, he is now inviting the media to dig stuff on these two woman. Second, its been reported that Cain told a staffer this was going to happen. Third, Cain first claimed to kind of remembers the story happening, now he says he remembers, but it was false and he was cleared by an investigation, BY THE COMPANY who had every reason not to want this to happen.

    Last but by far not the least, Cain has now said more women are probably coming out with this stuff, and they are false if they do. Now I know this could not be true, but if you telling me that you feel more women are going to come out and say this, then it tells me you are trying to get ahead of the next round of the story. Why did you not address this before Politico released the story.

    Every election cycle has a story that breaks that everyone remembers being the one, that one story that defines that election, you know J. Wright, Bush drinking and driving. Well I think we have found our story. Again, this is why we do not run candidates that have not been vetted. Could you imagine if this happened in the general election.

  • center77

    I watched the reporter that broke the story on MSNBC this morning and he said there was physical contact, as well as Cain asking one to go to a hotel room with him.

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