http://www.cnn.com/2011/11/09/opinion/callan-herman-cain/
Cain would win in court, but this is politics
Editor's note: Paul Callan is a New York trial attorney who has litigated many sexual harassment cases. He is a senior partner at Callan, Koster, Brady, & Brennan, LLP and a CNN Legal Contributor.
(CNN) -- In the midst of a swirl of rumors about Herman Cain, a woman who accuses him of sexual harassment holds a news conference. Her attorney, Gloria Allred, employs her studied grimace as Sharon Bialek tells of an encounter 14 years ago that, if true, constitutes an unreported sexual assault. At his own press conference the next day, candidate Cain issues a heated denial, having earlier hinted at a willingness to take a lie detector test.
How would the court system, America's formal arbiter of truth, evaluate the competing claims?
...
Although legitimate claims deserve compensation, the sex harassment litigation story has a seedy underside. False complaints are sometimes rewarded with generous monetary awards and then hidden from public view with confidentiality agreements and sealing orders.
Employment lawyers are accustomed to meeting with CEO clients who are initially defiant and determined to resist a false claim of sexual harassment. They want their reputations and integrity preserved. But when a high-ranking executive is involved, the company rumor vine begins to grow. Depositions are taken. Employees are pulled out of the workplace to back one side or the other. Sterling reputations begin to bleed under the slash of a thousand paper cuts.
And of course, the litigation process is expensive for the company. Knowing this, experienced lawyers often urge even the innocent accused executive to agree to mediate claims informally and avoid the possibility of a very public and very embarrassing federal lawsuit. Legitimate victims are also urged to settle rather than risk losing at trial.
Once mediation begins, the parties are told that public humiliation and legal costs can be avoided with a quiet, confidential settlement. Both plaintiff and defendant are simultaneously silenced by the agreement's penalty provisions. The truth of the claims will never be tested in any public forum.
That is, unless the accused decides to run for public office. Then it appears the art of the leak can undermine the solidity of even the most carefully drafted of confidentiality agreements.
Herman Cain said he never consented to the mediation process. The National Restaurant Association, through its board, might have negotiated its own deal with the two women who made allegations of sexual misconduct against Cain to avoid bad publicity and legal costs. Businesses will often "settle and seal" the case rather than endure the expense and embarrassment of defending even a falsely accused chief executive.
Based on the sketchy reported accounts, the initial case against Cain might have been paper-thin. There is no assertion of overt sexual contact between him and the female employees in question. The website Politico, which broke the story, refers to witness accounts of episodes of conversations filled with "innuendo" and of "physical gestures that were not overtly sexual" but which made female employees feel uncomfortable.
No one who has followed Cain's astonishingly successful presidential campaign would be surprised to hear that he uses blunt language and gestures to express himself. The question of whether this blunt language constituted true sexual harassment may never be known.
The claimant represented by attorney Joel Bennett, and recently identified as a federal government employee, has refused to go public despite the National Restaurant Association's highly unusual decision to release her from the negotiated confidentiality agreement. The second and third women remain anonymous while Bialek surfaces with very old, never formally reported claims. In a court of law, Cain would clearly win.
Washington lobbyist
