Commentary Magazine


Was Cain Unaware of Harassment Settlement?

Herman Cain maintains that he wasn’t aware of any financial settlements that the National Restaurant Association reportedly reached with two women who accused him of sexual harassment in the 1990s. But how likely is it that the head of the association at the time would be left in the dark on the issue? To get a clearer idea, I spoke with Liane Fisher, an employment attorney based in New York who specializes in sexual harassment and discrimination cases.

Fisher told me that it wasn’t “impossible” that Cain was oblivious about the settlement, but it seemed highly unlikely from her experience.

“I’ll just put it this way. I’ve never seen a case where the individual harasser was unaware or clueless about what settlement if any was entered into with the accusers,” Fisher told me. “From a common sense perspective that wouldn’t really happen.”

That would especially be true Cain was based in a state where the law allowed for individual liability. “In that particular incident if he was exposed to individual liability for sexual harassment under state and local laws he would certainly have a vested interest in wanting to settle the claims between him and any accusers,” said Fisher, adding that “any settlement agreement would likely involve a release of claims against him individually.”

But even if Cain was released from individual liability in the settlement, it might still be difficult to prove without a doubt that he was aware of it. His signature and name wouldn’t necessarily have to appear on any documents. His title (and possibly the titles of other officers or executives) could have simply been incorporated into the language of the release agreement, which is a fairly typical practice.

But it seems logical that someone accused of sexual harassment would want to be kept aware of the status of the issue. Even if Cain was uninterested for some reason, it would be standard for the general counsel to keep him posted.

“It’s really a stretch that he wouldn’t know about this,” concluded Fisher.

Which suggests Cain may have a lot more answering to do before this is all over.