The Post reports: “A woman who accused Herman Cain of sexual harassment in the 1990s is ready for her story to come out, her attorney said Tuesday, even as the Republican presidential hopeful spent a second day trying to quell the mounting controversy and explain his conflicting recollections of the matter.” This development has set off massive, and mostly baseless, speculation about who can say what about this matter.
For starters, there is no confidentiality jail. If she talks despite a confidentiality agreement, the worst that could happen is that she could be sued. If there is a liquidated-damages clause (an amount specified if the provision is breached), she could be liable for that amount. If there is not, the damages are likely the amount of the settlement (the employer didn’t get the benefit of the bargain for, say, $35,000).
If Cain, as he claims, is not party to any settlement agreement, he can’t waive the confidentiality provision on behalf of the National Restaurant Association (NRA). He can, of course, publicly request that the association do so.
The leaks to news outlets concerning the claims and settlements might affect the legal positions of the parties, depending on the identity of the leaker. Reports suggest that one or two board members have been blabbing. If so, the woman has an argument that, by virtue of the actions of the NRA’s board members, the confidentiality clause has already been breached. But neither she nor we can be certain as to the identity of the leakers. She has a better argument that Cain, in his capacity as CEO, was obligated to uphold the confidentiality provision and failed to do so.
To sum up, Cain’s accuser can talk, provided she’s willing to incur the potential liability. The NRA can waive the provision, although Cain legally cannot. And, of course, some enterprising individual (or news outlet) could offer to indemnify her to get the story out. This, however, essentially would be the same as paying for her story, which generally lowers the credibility of the account.
But here is the thing: She certainly isn’t the only source of further information on the case.
The New York Times reports:
The National Restaurant Association gave $35,000 — a year’s salary — in severance pay to a female staff member in the late 1990s after an encounter with Herman Cain, its chief executive at the time, made her uncomfortable working there, three people with direct knowledge of the payment said on Tuesday.
The woman was one of two whose accusations of sexual harassment by Mr. Cain, now a Republican candidate for president, led to paid severance agreements during his 1996-99 tenure at the association. Disclosure of the scale of the severance further challenged his initial description of the matter as a “witch hunt,” as did new descriptions from the woman’s friends and colleagues of her level of discomfort at work.
Adding to the pressure on Mr. Cain, a lawyer for the second woman called on the restaurant association to release her from a confidentiality agreement signed as part of her settlement, raising the prospect that she could publicly dispute Mr. Cain’s account of what happened.
Let’s count the ways in which this is problematic for Cain. First, a year’s salary in the 1990s for a claim without physical contact or quid pro quo sexual harassment (i.e., her employment was conditioned on sexual favors) is not mere nuisance money. It’s not huge; it’s not suggestive of horrible misconduct, but it does lend one to conclude there were some bad facts. (Those bad facts might have nothing to do with Cain. For example, if the NRA didn’t have an anti-harassment policy or didn’t properly investigate the case, the settlement value would go up.)
Second, there are three witnesses talking to the Times. Who thinks they are all going to remain anonymous and/or mum on additional details? Not me.
Third, once again we see that the essential facts in Politico’s original story were correct. There were two claims of harassment. There was a five-figure settlement with regard to at least one. Really, what’s his beef with the Politico piece?
And finally, the story isn’t going away. It is becoming more detailed and more complicated. The threat of additional, inconvenient facts emerging increases. If Cain hasn’t told his wife, staff and voters all he knows by now, he’d better do so fast. It might be his last chance to shape the story in a way that is less damaging to him than it might otherwise be.
You don’t have to think Cain was a creep or even made an error in judgment in saying something inappropriate to an employee a decade or so go. You don’t even have to think sexual harassment cases are generally credible. But it’s getting hard to dispute that Cain’s lack of professionalism, his evolving stories and his resort to the race card in defending himself raise serious questions about whether GOP voters should entrust him with the nomination.
At the very least, he probably should cut out his favorite line that his reputation as a “problem-solver” is an asset. In this case, he’s multiplied and deepened his problems.