Are minorities and women being settled into silence?
OPINION - Your biggest fear as a potential complainant is that you will be professionally black-balled and isolated, or worse branded 'crazy' and a non-'team player'...
Just when we thought the dust had seemingly settled in the Cain sexual harassment scandal, a third woman has surfaced saying she too felt harassed by Cain but did not file charges. And a former aide at the National Restaurant Association (NRA) says everyone knew of Cain’s inappropriate behavior with women and that it was just a matter of time before it came to light in the presidential race.
However, in my opinion, the real public policy issue we should be discussing is why these types of “settlement and release” agreements are offered in the first place, who gets them, and do they serves the greater good in fighting workplace discrimination and harassment claims. Let’s first recap quickly what has happened in the Cain case to date:
Herman Cain admitted Monday at the National Press Club that he was accused of sexual harassment while at the National Restaurant Association, that an investigation was conducted, that is was found to be “baseless” and that he was unaware of any settlement.
Hours later Cain changed his statement that he was aware of an “agreement” but not “a settlement” with the accuser, and that he hoped it was not “for much” because he didn’t do anything wrong.
WATCH NBC NIGHTLY NEWS COVERAGE OF SEXUAL HARASSMENT IN THE WORKPLACE:
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Later on Monday, NBC News broke the story that a woman confirmed she had been paid a settlement from the NRA. But this is key: A settlement is never an admission of guilt. It is a legal document used to keep all parties silent, in exchange for a payment, release of all legal claims, and ensures protection of confidentiality.
The agreement always survives the tenure of the parties who agree to it and usually if it is breached there is a “liquidated damages” clause that is enforced as punitive measures for the breach. Usually those damages are limited to whatever the aggrieved party was paid out, or if it turns into a public firestorm as this case has the NRA and Herman Cain could be on the hook for a lot of damages to the accusers.
Tuesday night, one of the accuser’s lawyers Mr. Bennett said that he had not yet approached the NRA for a waiver of the agreement so that his client could talk, because he first had to get a copy of the now 12 year old document. He suggested under pretty vigorous questioning by famed CNN legal analyst Jeff Toobin that his client was firm in her belief that Cain had in fact sexually harassed her.
Late Tuesday night news broke that at least one of the accusers was paid a full year’s salary. In the 1990s, a $35,000 a year job is likely the equivalent of a $55,000 job today. This seemed to fly in the face of what most legal analyst (including me) believed what was paid was what we call a nuisance payment-which means you believe the claims to be false but pay a small sum to make the aggrieved party go away rather than deal with public exposure or damages in court.
And finally, a third woman has surfaced. The Cain campaign blames the Perry campaign and a former Cain adviser, who denied the charges on CNN this morning.
Fast forward to this morning, the only issue now on the table is whether or not Cain’s accusers will have their day in the media. I suspect they will, and soon, because in my legal opinion the settlement agreement has already been breached by Cain speaking about it, admitting it exists, and making statements that the women who filed such charges were not being truthful?
Even if Cain did not sign the document himself (which is common), he is an implied party to its confidentiality because he was the chief officer of the Association at the time.
But here is what troubles me greatly as an attorney and as a woman who has signed such a “settlement and release” agreement at least once in my career. I, like many of you who have been there and had a “smoking gun”, witnesses and emails proving blatant racial discrimination in the workplace, yet I settled quietly because to sue the employer would do me more harm than good professionally.
Thus, these types of agreements are used very strategically and oppressively to place a chilling effect on women and racial minorities who have legitimate claims of workplace harassment or discrimination.
Your biggest fear as a potential complainant is that you will be professionally black-balled and isolated, or worse branded “crazy” and a non-”team player”. So you hire a lawyer (as these women did) and you get them to negotiate you the best deal possible so that you can move on with your life.
Any labor and employment lawyer worth their salt can tell you that companies, governments, and industry executives worldwide rely on their general counsels to dispose of so-called “nuisance suits” for a few months salary or some benefits in order to keep them from having to deal with public embarrassment or scandal.
Even if they believe the claims are baseless. In my case, and that of millions of other women and minorities who have been there, even when you have proof the corporation’s lawyer up against you, they hire outside counsel (large law firms with high priced lawyers) so you can’t fight back, and they get pretty rough. Instead of correcting the bad behavior that goes on mostly from men in high places, they go after the employee who has been injured, and fight him or her to the death.
These “settlement” agreements are hard-fought, particularly anything over three months pay and benefits, and usually cost the wronged employee thousands in lawyer’s fees. This is a practice the ABA and other workplace “watch” organizations must address if we want true gender and racial equality in the workplace.
Sadly, for Herman Cain he will become the poster-child (guilty or not) for bad CEO behavior, that was covered up, someone was paid off, and Cain went on to run for President. While the young woman or women in question got left with the baggage of whatever offense they believe they endured.
Much like Bill Clinton and others before him, when will we as Americans get sick of politicians who can’t keep it in their pants, or who can’t stop “looking at the flowers” as Cain quipped the other night. America we can do better.
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