About Those Cain Settlement Sums

I have made my living in the litigation business for several decades, so I know a great deal about how claims are settled. However, I am not an expert in employment law in general or sexual harassment in particular. So I have been reluctant to express my reaction to the claims against Herman Cain–whatever those claims may be, and by whomever they may have been asserted. A long-time reader who is one of the country’s leading experts in this area of the law steps into the breach with this missive:

In my opinion, the reported settlement sums – $35,000 and $45,000 – do not exceed “nuisance value.” In fact, the nuisance value of a sexual harassment claim based on the alleged misconduct of the head of an organization in the late 1990s was probably higher than these sums. Sexual harassment claims have much more potential for embarrassment than ordinary discrimination claims. And in the classic “he says, she says” situation, the outcome is usually much harder to predict. Hence the extra incentive to settle regardless of the merits.

On the other hand, a female who truly has experienced inappropriate behavior of a sexual nature might settle a case for as little as $35,000 or less. For example, a woman who is able to move seamlessly into a comparably paying job will sometimes accept a small settlement (or none) in order to be done with the matter. This is especially true if she did not experience major distress, and is unwilling falsely to allege it. The main goal of a woman who has a creepy boss is often to escape the situation, not to relive it in the hope of extorting a big settlement.

In addition, conduct that many would consider inappropriate, especially in a presidential candidate, might not clearly rise to the level of actionable sexual harassment. The law requires that the conduct alleged be “severe or pervasive.” A woman who experienced only a few incidents of inappropriate language or innuendo, without any pinching, groping, or truly lewd behavior, might reasonably take a small settlement for fear that she can’t meet the legal standard. However, the legal standard doesn’t necessarily coincide with the standard we want public figures to adhere to.

There are other plausible scenarios I could spin out, some favorable to the pro-Cain view and others not. But all of them are purely speculative.

All I can say with confidence is that, without more, the fact that Cain’s employer settled the cases for $35,000 and $45,000 should not move anyone in the direction of concluding that the allegations against him – whatever they may have been – were true or that they amounted to sexual harassment.

I probably would have expressed the same conclusion more strongly. Frankly, hard as this may be for many people to understand, $40,000 in the context of lawsuits is chump change. Amounts of this sort are constantly paid to people who had lousy claims, at best, and who were almost certainly lying. It is conceivable that someone, somewhere, could have had a valid claim against Herman Cain. But the fact that the National Restaurant Association paid amounts in that range to disaffected employees to get rid of them and obtain a release proves nothing. On the contrary, if anything, it suggests that the claims against Cain were either insignificant or false, or both.

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