November 2, 2011

HERMAN CAIN has denied sexually harassing two women who worked at the National Restaurant Association while he led the organization during the 1990s. The GOP hopeful batted back the allegations, which were first reported by Politico on Sunday, during an appearance at the National Press Club and in several television interviews. Mr. Cain has spoken quite a bit, but he has said little.

This, in part, is due to a confidentiality agreement that bars Mr. Cain and his accusers from talking about the matter in detail. A lawyer for one of the women told The Post’s James V. Grimaldi that his client might ask the restaurant association to release her from the vow of silence so that she may tell her side of the story. It is not clear whether Mr. Cain must also approve before she may speak without legal consequence. Whatever the case may be, all parties bound by the settlement should agree to lift the secrecy provision to allow full and public airing of the facts.

Confidentiality agreements should not be discarded without careful deliberation and without the consent of both sides. These agreements can protect the reputations of wrongly accused individuals or organizations that nevertheless enter into settlements to avoid the expense and embarrassment of having allegations aired in open court. Accusers benefit by being compensated for alleged mistreatment without having to incur the costs or stress of litigation. Secrecy may also protect accusers who fear that they may have trouble landing jobs in the future if their complaints become public.

These agreements are rarely breached precisely because they provide benefits to both sides. One lawyer with 30 years’ experience with such deals told us that he has never been involved in a case where either party has requested dissolution of the secrecy agreement.

The purpose of the confidentiality agreement in the Cain case was shattered when the settlement’s existence and the general outlines of the accusations were publicly revealed. And more details continue to emerge. The New York Times, for example, has reported that one of the women had been paid $35,000 to settle. Politico and the Associated Press have reported on other instances of alleged sexual harassment by Mr. Cain.

For Mr. Cain, the news reports may come as a disappointment, but they should not come as a surprise, given the scrutiny to which presidential aspirants are subjected. An agreement that once may have been a matter of private concern is transformed into a matter of public interest when one of the parties is running for the highest elected office in the country.

Voters are entitled to know the facts behind the settlement and the alleged harassment, and they can learn them only if both sides are allowed their say. Late Wednesday, a lawyer for one of the women stated that she would not come forward and that any statements from her would come from him.

Mr. Cain and the restaurant association should ensure that this is possible by freeing the women to come forward if they wish.