Putting Herman Cain's Sexual Harassment Accusations In Context
A media storm has broken out over allegations made by the inside-the-Beltway publication Politico that two women in the employ of the National Restaurant Association were made to feel angry or uncomfortable by sexually suggestive remarks or gestures made by Herman Cain when he headed that association a dozen years ago.
I have no idea whether Herman Cain ever made two of his employees feel uncomfortable, nor do any of the rest of us. I also can’t predict whether voters will conclude that such insensitive behavior, if substantiated, renders Cain unfit to be president, particularly given the comportment of other celebrated Oval Office occupants. But I do know what it is like terminating employees in the over-regulated and hyper-litigious environment created by the Equal Employment Opportunity Commission and the tort bar that works so diligently to expand the scope of employment law. I am also very familiar with the steps companies often take to avoid the expense of fighting false accusations.
Over the past 14 years, while serving as a director of numerous privately held companies, I have been involved in the termination of dozens of employees, including officers and executives. The decision to terminate an employee is never an easy one, and is most commonly made for lack of performance. The procedures that have to be followed and the amount of paperwork required, even for simple cases, would astonish most people who don’t spend their lives cutting through thickets of regulatory red tape just to accomplish basic tasks. Extreme care is always taken when terminating an employee that is a member of a protected class. Protected classes include women, anyone who can claim a disability, anyone over 40, and anyone who is not Caucasian.
Despite managers’ best efforts, it is all too common for a terminated employee to hire a lawyer and threaten to sue. Claims of sexual harassment by an employee about to be terminated are the easiest to make, the most difficult to refute, the most expensive to defend, and the most damaging to any executive on the receiving end of false charges. Hence, settling these charges, even when blatantly false, with a small payment and a mutual confidentiality and non-disparagement agreement is an everyday occurrence in the corporate world. Serial accusers find these agreements especially profitable as it allows them to make such charges again and again through the course of their careers.
The Politico story made a great deal of the fact that the separation agreement given to the two accusers entailed a payment in the “five-figure” range. Having approved many of these agreements myself I can tell you that five-figures is what you pay when the separation is amicable, as it is a bargain compared to defending false charges in litigation. In fact, the vast majority of the terminations I have been involved with typically included three to six months of severance pay plus medical benefits, even when such consideration wasn’t demanded or mandated by an employment contract. Hence, five-figure sums. The going rate to cover up guilt is at least six figures, sometimes even seven. Just ask former presidential candidate John Edwards.
Insinuations that five-figure payments somehow corroborate the truth of accusations are an extreme act of reckless journalism. Or worse, they are not journalism at all but, rather, classic dirty campaign politics. Who can forget the story of one of Lyndon Johnson’s early Congressional campaigns in which he spread the rumor that his opponent had sexual relations with barnyard animals. “It couldn’t possibly be true!” a staffer complained. “I know,” said Lyndon, “but let’s make the bastard deny it.”
Despite promises of privacy from Politico’s reporters, these women will surely be outed once the baying hounds of the press catch the scent. While they will initially resist going public, the lure of their 15 minutes of fame plus the media money that goes with it will prove too tempting. The electorate will then be subject to a he-said, she-said saga on which everyone can project their own biases as we marvel at the elevated role such personal attacks play in our political process. While we are unlikely to be entertained with anything as spectacular as a stained blue cocktail dress, the ink that will be spilled over Hermangate will surely distract us from the serious issues of one of the most important presidential campaigns of our generation.
But then, that’s the whole purpose of the story, isn’t it?