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Cain and sexual harassment charges

I wasn't a huge fan of Herman Cain last week: as the last three years have shown us, the presidency requires more than a lightly-experienced charming guy who can turn a pretty phrase. The sexual harassment allegations have lowered my opinion of Cain, though not so much because I think Cain engaged in flirting, but because someone running on his business experience is demonstrating that he isn't very good at crisis-management either.

I don't have the faintest idea whether Cain is guilty of sexual harassment two decades ago. As Curt Levey notes, the complaints that have been aired to date rise to the level of Clintonian flirting rather than something actionable, though that doesn't mean that there wasn't more to it than that. More importantly, the fact of a five-digit settlement (the story of this changes, but now it appears that it was a year's pay to a $35,000/year employee) indicates absolutely nothing. Kurt Schlichter has a good piece in the New York Post:

When you consider that, more than a decade ago, Herman Cain settled some unspecified sexual-harassment claims, you also need to consider that the only things you need to file a lawsuit are the filing fee and a printer. Facts are optional.

Maybe Cain did harass some employees. But the dirty little secret among lawyers that defend business people from lawsuits -- and among those lawyers who bring them -- is that an enormous percentage of such claims are frivolous, if not flat-out lies. ...

Lawsuits are so expensive to defend that it makes good business sense to settle even the most frivolous cases. And businesses do. ...

In the world of sexual-harassment law, the accusations are bad enough. You're guilty until proven innocent. The law is skewed toward the plaintiffs -- it's hard to get even the silliest charges tossed out, and even then it often costs upward of six figures to do so.

Businesses almost never collect their legal fees back after defeating frivolous claims, but a winning plaintiff usually does. And when the lawyer is working on a contingency, taking 40 percent or more of the haul and fronting the costs of the suit, there's little incentive not to march down to the courthouse and file even the flimsiest case.

Indeed, it is so easy to bring a profitable sexual harassment claim that it's frankly a testament to the sturdiness of our civil society that we don't see much more of them, true and false. That said, just as a payoff doesn't indicate a true sexual harassment claim, it doesn't indicate a false one, either.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.