Cain and Thomas: Confidentiality and Sexual Harrassment Settlements

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, CUNY Law Professor Rick Rossein talks about sexual harassment settlements in light of the accusations against Herman Cain from his days as head of the National Restaurant Association. 

Herman Cain claims that he can’t remember signing a sexual harassment settlement with the women now charging him with inappropriate sexual conduct, and the women themselves have been reluctant to come forward because they are bound by confidentiality agreements. But why are victims so frequently bound by law not to tell their stories?  

Rossein said most often it is the employer who pushes to have a confidentiality agreement as part of the settlement. Usually, when a person files a complaint of sexual harassment, the employer responds with two main goals in mind: First, they want to avoid any negative publicity, and second, they want to discourage other employees from filing complaints, either because they see it as newly possible or as potentially lucrative. 

Rossein said sometimes the accusers themselves may desire confidentiality, as they may have concerns that future employers might discriminate against them if it is known they filed a complaint. Regardless, Rossein said confidentiality contracts are nearly universal in these situations. “I would say probably 90 – 98 percent of the time.”

One of the women charging that Cain harassed them has said through her lawyer that she would like to issue a statement, but does not want to go public with her version of events in minute detail, because she “has a life to live and a career and doesn’t want to become another Anita Hill.”

Professor Anita Hill’s case is a valid point of reference for these women. Twenty years ago she famously accused Supreme Court Justice Clarence Thomas of sexual harassment. Rossein said that accusation led to tremendous disruption in Hill’s life.

We look at her life and how miserable it was for a number of years. She’s recovered terrifically, but there are countervailing issues here.

Yet Rossein thinks that the women may eventually need to disclose their story in order to fully address the charges.

It comes down to credibility issues, and without the full airing of the complaint it would be unfair to Mister Cain if only part of the story comes out.

Rossein said it’s likely that the woman’s identity will become known anyway, since other employees at the time were probably aware of the situation, at least to some degree.

Interestingly, some of Cain's hemming-and-hawing may not just be out of fear that these accusations could hurt his campaign. Rossein said confidentiality agreements apply to both the accuser and the accused, so Cain, too, may not be allowed to discuss the incident. If he is bound by the agreement, he too might need to seek permission from the National Restaurant Association, his employer at the time, though that would depend on the terms of the agreement. 

One thing is for sure—we'll be hearing a lot more about this as the campaign continues.