In Defense of Herman Cain. (I can’t believe it either.)

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"Herman Cain with 'Yes Weak Cain' Legend"

Someone, today, is secretly sending out this rousing victory cheer. Is it Romney? Perry? Newt?

Herman Cain is not facing a “high-tech lynching” on sexual harassment charges due to his race, no matter how Rush Limbaugh and Ann Coulter are trying to spin it — but he is facing something along those lines for which I’d prefer to use a less loaded and racial metaphor.

He’s facing being stabbed in the back by forces within the Republican Party because he’s showing signs of being able to win the Republican nomination and they don’t like it.  It could be coming from Romney partisans or from non-Romney rivals who envy his leading the pack — or both.

Could he have committed acts of sexual harassment?  Absolutely — though even that question, as I’ll address, is not as straightforward as it seems.

Whether he did or he didn’t, is it possible that the case would have been taken out of his hands quickly and that he’d know very little about its facts and its resolution?  Again: it’s absolutely possible — even fairly likely.

I don’t blame laypeople for not knowing how sexual harassment claims at the sort of organization where Cain worked are addressed.  I do blame the media for not finding out — and I do think that people should not be so quick to presume that “where there’s smoke, there’s fire.”  Cain, like so many challengers to Mitt Romney this year, is being taken down by a scandal — but what we know (as opposed to what we merely suspect) is not scandalous.  So rather than do Mitt Romney’s (or Rick Perry’s, or Newt Gingr — nahh!) work for him, let’s take a look at what we know about the Cain sexual harassment charges.

First, we know that they happened in the late 90s, when Cain was heading the National Restaurant Association, a trade group.  That’s a long time ago — which does not mean it’s irrelevant, but means that his and others’ memories of it would not necessarily be sharp.

Second, we know that apparently two women raised sexual harassment complaints against Cain.  I have not been following these events closely enough to know whether they were raised in a lawsuit; most likely, they would have initially been raised in a “demand letter” from an attorney, requesting discussion of the situation.

Third, we know that apparently the behavior stemmed from Cain’s behavior towards the women in a social setting, when his actions made them uncomfortable on account of sex.  He could have been coming on to them “for real” in ways that were merely offensive or that actually involved a quid pro quo (offers of rewards, threats of punishment, or some combination); he could have been “playing around” with sexual innuendo; he could have been talking about gender issues (related to sexuality or to women’s role in the workplace) in ways that the women found demeaning.  All of these and more would fall into the general category of “sexual harassment.”

Fourth, we know that the matter was quickly taken out of his hands and handled by others.

Some critical issues:

How do we know if it was sexual harassment?

I’m familiar mostly with California law, but I think that this is probably generally true: neither the subjective opinion of Cain that his actions didn’t constitute sexual harassment nor the women’s opinion that it did — or their honest reaction of feeling uncomfortable or threatened — are definitive.  We look to what a reasonable person — or a reasonable women, and the difference between those two approaches is often critical — would experience in that situation.  In other words, is it possible that Cain believed and still believes that he did not engage in sexual harassment while the women involved believed and still believe that he did.  Whether it would be found to be sexual harassment in court depends on how the individual fact-finder lines up the facts with the legal definitions; even given the same facts, results can vary widely.

To compare this to the Clarence Thomas situation, it would be hard to argue that a reasonable man should not have known not to talk about pubic hairs on Coke cans and one’s enjoyment of Long Dong Silver and other porno stars with a female subordinate — and, a quarter century later — probably not with anyone unless one was very comfortable predicting that one would not be sued.  I don’t know exactly what Cain is accused of having done — maybe it was in the same league — but it’s entirely possible that an honest sexual harassment complaint could have been filed even if it was much less egregious.

Is it unusual that he would know little about the case and its terms?

Depending on how the case proceeded, it could certainly happen.  Cain was not at the organization for long; the organization would have been more concerned about protecting its long-term interests than in making sure that Cain had no stain on his record that might come up more than a decade later in a run for the Presidency.

Here’s how he describes it in his interview last night with Greta Van Sustern; I’ll comment as it proceeds.

CAIN: My general counsel came to my office and told me that she had made a claim. And I said, OK, what do we need to do?

VAN SUSTEREN: What did she — what did he say she claimed you did?

CAIN: He just used the term sexual harassment claim.

VAN SUSTEREN: You didn’t say what — like what?

CAIN: No.

VAN SUSTEREN: You didn’t say, like, Whoa, what did she say I did?

CAIN: No, I didn’t. I just said, What do you mean sexual harassment? She’s made some claims of sexual harassment.Now, he may have told me what incidents that she might have included in the claim, but all day today, as I’ve been getting beat up, I’ve been trying to recall what some of those things were and haven’t been able to recall a lot of them because that’s why they got dismissed. It was no basis because it was simple stuff.

None of this is surprising or sinister.  The General Counsel tells Cain that there is a claim and may delicately probe to see if there was any obvious basis for it.  Cain does not think (or professes not to think) that he’s guilty, so he says “take care of it.”  He could be lying about not remembering the details, but there’s no reason to conclude that he is.  Whatever the events leading to the charges were, they were probably a lot more significant to the victim than to Cain.

VAN SUSTEREN: Do you remember any of it?

CAIN: … I recused myself and it was handled by two of my staff members. And they were — one of them is an officer level. So once it was resolved, I wasn’t involved, don’t recall what, quote, unquote, “settlement,” termination — I don’t know what it was.

[I’m omitting his discussion of the gesture that he thinks was part of the complaint; I would not trust his memory of this anyway.]

VAN SUSTEREN: … [O]nce the general counsel came to you and told you there was a claim, what was the next thing you did?

CAIN: I recused myself and told Peter…

VAN SUSTEREN: The general counsel.

CAIN: … the general counselor — to get together with Mary — I’m losing the last names because we’re talking 12 years ago — that for them to basically address it. I do recall that the lady making the charge had gotten an attorney. And I recused myself because I was the CEO and the charge was being leveled against me.

Peter kept me updated on the progress of this whole situation, and the thing that I remember most is when one day he came in and said, First, the charges were found baseless.

VAN SUSTEREN: By whom?

CAIN: I don’t recall by whom the charges were found baseless. I don’t know whether it was attorneys getting together. I don’t even remember if we had outside attorneys. I was busy traveling. I was busy running the association, so I wasn’t involved in a lot of the details about this. So I really can’t tell you how they were determined as being baseless.

I’m not convinced that the General Counsel concluded that the charges were “baseless” — i.e., that they were of a sort that no reasonable jury could find constituted sexual harassment.  It does seem likely that, as Cain goes on to say, the GC concluded that, lacking witnesses, she had a weak case.  In that case, would the GC /tell/ Cain, in reporting a settlement, that he had concluded that the charges were baseless?  That would not surprise me at all.  Why have that conversation with your boss, probably in the process of advising him to be more careful with female subordinates, if it wasn’t necessary?  “Baseless,” “little chance of succeeding” — what’s the difference?

VAN SUSTEREN: Were you ever deposed or questioned by her lawyer?

CAIN: No, I was not.

VAN SUSTEREN: Was she, to your knowledge, ever deposed or questioned by your general counsel or anybody in connection with your organization?

CAIN: I don’t know for sure. I can only — I don’t want to presume. I do not know for sure.

VAN SUSTEREN: OK. Between the time that you were told that there was an accusation against you and the time that it was settled, how much time was that about?

CAIN: It was about six to nine months.

VAN SUSTEREN: And during that time, did anyone talk to you at all about it?

CAIN: No, other than my general counsel. That was the only person that talked to me about it.

What this tells me is that the case probably didn’t go far into the “discovery” process (of depositions and such), if indeed a formal complaint was filed at all.

Conservatives and defense attorneys like to talk about “nuisance suits,” which they claim to be willing to settle because it costs less money than fighting them.  (In many of our experiences, we may treat some parking tickets like that: we think that we were in the right, but it’s not worth the fight.)  I expect that the GC would have described this to plaintiff’s counsel as a “nuisance suit,” a term that the attorney representing the woman would have resisted.

In truth, a true “nuisance suit” is not that likely to lead to a settlement in most cases.  What you have here, instead, is a “readily settled” suit — one where the stakes (if the case is settled) are relatively low and the possibility of a bad result for the employer may be relatively low, but the price of such a bad result, if it happened, could be high.

In such a case, “getting at the truth” — the advertised specialty of the legal system — is not seen as that critical by either side.  What’s of interest is that the potential plaintiff (with a share going to her attorney) gets paid reasonable compensation for her losses.  She might get the equivalent of several months of severance; she may get a neutral or tersely positive recommendation and perhaps a pledge not to contest her unemployment claim.  And … it would be settled.  Cain gets some useful feedback that he should monitor himself a bit better — or, if he did do something truly horrific, that he couldn’t count on getting away with it — and everyone moves on.

If this is what happened, Cain would not likely know how much the settlement was for, nor its specific terms.  Most likely, they just wouldn’t matter that much to anyone — at least until some rival campaign found out about it and tried to make a big deal over it.

VAN SUSTEREN: OK. So the six to nine months later, the general counsel comes in and says, It’s settled?

CAIN: Yes.

VAN SUSTEREN: OK. Did you ask, like, Well, what did you do?

CAIN: I did.

VAN SUSTEREN: And what were you told?

CAIN: He said this started out where she and her lawyer were demanding a huge financial settlement.

VAN SUSTEREN: How much?

CAIN: I don’t remember the number.

VAN SUSTEREN: Thousands or hundreds of thousands?

CAIN: Thousands, but I don’t remember a number. But then he said, The good news is because there was no basis for this, we ended up settling for what would have been a termination settlement, quite frankly, in terms of…

VAN SUSTEREN: And what would that be, about?

CAIN: Maybe three months’ salary or something like that, just vaguely trying to recall it.

VAN SUSTEREN: Is that a normal…

CAIN: Yes.

VAN SUSTEREN: When you leave the restaurant association, you get three months?

CAIN: Depending on how long you have been there. It’s based upon how many years you’ve been there. So I don’t remember the — it might have been two months. I don’t remember the exact number, but I do remember my general counsel saying, The good news is, we didn’t pay all of this money that was being demanded. It really worked out to what we probably would have been able to give her if she had resigned because for cause.

VAN SUSTEREN: Why didn’t she get that anyway? I mean, why didn’t she get the settlement and the resignation or severance?

CAIN: She would have gotten the severance, based upon what I recall the conditions under which she left. So we — she ended up getting what she would have gotten if she had just said, I want to leave and I would like to negotiate a severance agreement. That’s probably as far as we would have gone. But I can’t guarantee that it was two months or three months. I just know it was well within the range of what we would do if we had an amicable separation between the association and an employee.

VAN SUSTEREN: Any idea about what she was making a year?

CAIN: Can’t recall. Probably — probably $40,000 to $50,000 a year, maybe.

This is often how it goes.  The demand letter comes in saying that this will cost a huge amount of money; if things look likely to become an expensive stalemate, the person complaining gets a settlement styled as “severance” that may be what they would have gotten anyway had they been laid off.  (Maybe a little more, if Cain’s actions seemed pretty skeevy without seeming extreme or a quid pro quo; Cain would not necessarily be informed, though, if this is what happened.

Is it surprising that Cain got accused of sexual harassment?  It happens sometimes.  Sometimes, undoubtedly, it can be a trumped-up charge; sometimes, I know from experience, it can be an extremely serious one.  Often it is in the expansive gray area between what a male supervisor thinks is acceptable and a female subordinate thinks is not; a wise organization works to get people on the same page before these conflicts happen and has means of resolving them more amicably than this.

It is possible that Cain, in his relations with female subordinate, is a truly reckless and rotten human being.  That is clearly what some Republicans — Democrats are not trying to get this guy out of the race right now — want people to believe.  But it is also possible that he is not.  Right now, his critics seem to be relying on the unfamiliarity of even the generally well-informed public with how sexual harassment claims are actually handled — a reality where what Cain has been saying sounds quite plausible, except for a few immaterial contradictions, whether or not it is true.

I don’t like Herman Cain’s politics, but I don’t like his being convicted unfairly in the court of public opinion for what seems like nothing that sinister or unusual.  There’s a term for that which explains why, while I hate to defend Herman Cain, I have felt the need to do so.

That term is: “Rovian.”

(Author’s Note: Cross-post with edits from Daily Kos)


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)