If you believe you've been sexually harrassed...

[Omar Little]

...and it's important to you that your story be heard, then you better damn well not accept a monetary settlement tied to a non-disclosure agreement. You take your chances in court and see it all the way through. If the money was enough for you to walk away...then don't come crying back later.

There are lots of reasons that people and organizations settle lawsuits and guilt is not necessarily the primary reason. Usually it's a financial decision. What's the cost of defending this suit over a pro-longed period of time, vs. settling it right now.

[Snarky_Kong]

Yeah, what assholes that try to improve their lives, but also don't want a harasser to be president.

[Jophiel]

Originally Posted by Omar Little

There are lots of reasons that people and organizations settle lawsuits and guilt is not necessarily the primary reason.

But it's very possibly the primary reason and, for lack of details, people can't be faulted for drawing their own conclusions as to why a woman would be given $35,000 to drop a harassment suit.

[Omar Little]

Originally Posted by Jophiel

But it's very possibly the primary reason and, for lack of details, people can't be faulted for drawing their own conclusions as to why a woman would be given $35,000 to drop a harassment suit.

You are exactly correct. But the accusers that signed the non-disclosure agreements, signed away their rights to discuss the matters. The current request by one of the accusers attorneys to have the NDA waived so that she can tell her side of the story and let the court of public opinion decide has no legs to stand on.

[Jophiel]

Maybe, maybe not. I'm not a judge. But I can understand her frustration that Cain can apparently talk about it until the cows come home but she can not. I'm not privy to the agreement though so I don't know how kosher that is.

[DianaG]

Originally Posted by Omar Little

There are lots of reasons that people and organizations settle lawsuits and guilt is not necessarily the primary reason. Usually it's a financial decision. What's the cost of defending this suit over a pro-longed period of time, vs. settling it right now.

There are lots of reasons victims accept a settlement and vindication is not necessarily the primary reason. Usually, it's a financial decision. What's the cost of continuing to push this issue, what will be the effects on my future searches for employment, etc. vs. settling it right now.

It was probably not as big a deal to her to get the word out before he started running for President. One could certainly just as easily say that if you don't want your personal and professional dirt aired to the public, you should probably not run for President.

[madmonk28]

It's kind of unfair that Cain gets to tell his side of the story, but that the women cannot tell their side. If Cain can talk about it, then I think the women should be able to tell their stories.

[Omar Little]

The settlement was between the Restaurant association and the accuser. I would suspect that Cain was not even a party to the settlement agreement.

Cain has been responding to allegations made about him. It's not like he initiated these current discussions in the media.

I guess one form of recompense the accuser could have is to return the $36,000 settlement amount with interest over the last 20 years and then she could talk. I'm sure there are numerous donors that would happily contribute that amount back to the Restuarant association for her side of the story to be told.

[DianaG]

Originally Posted by Omar Little

I would suspect that Cain was not even a party to the settlement agreement.

So in other words, you're not entirely clear on the parties to or terms of the settlement, but you're perfectly comfortable picking a side.

[Jophiel]

Originally Posted by Omar Little

Cain has been responding to allegations made about him.

Likewise for her.

I'm not especially invested in the story but, if she wants to pick a battle for getting her side out, she should go for it. She's bound by a civil agreement between two private parties, not some Holy Law of Righteousness. She should use the civil process to protect herself and I can't really feel upset that she'd choose to do so.

[Omar Little]

Originally Posted by DianaG

So in other words, you're not entirely clear on the parties to or terms of the settlement, but you're perfectly comfortable picking a side.

I'm not picking a side. I'm arguing that people should honor the agreements that they make.

My perspective on Cain not being a party to the agreement is based upon my 24 years of corporate experience and normally in these situations the employee accused of the harrassment would not be a party to the agreement. It would be between the accuser and the company, as the company is who is being sued.

[Omar Little]

Originally Posted by Jophiel

Likewise for her.

But unfortunately for her, she's signed a piece of paper that said she wouldn't discuss it any more.

[Jophiel]

For one thing, you've admitted you don't know if Cain has or hasn't signed the same piece of paper. Cain's "recollection" has swerved from "Huh? Never heard of it" to "Oh, THAT harassment settlement! Let me tell ya what happened..." I wouldn't just assume his signature was or wasn't anywhere.

For another thing, so what? She signed it and now she's looking for recourse. Yay her, I guess. She's not out doing anything wrong, she's seeking a legal civil system solution to a legal civil system problem. People seek to revise legal agreements all the time in this modern world. Why should I care about this one or hold it against her?

[Omar Little]

It's my understanding that the alleged harrassment occurred at an after hours party where people had been drinking and involved something that Cain said. There's a wide spectrum of what people may or may not consider sexual harrasment in that type of situation.

Maybe the Restaurant association board should be questioned as to whether Cain was subject to any disciplinarian action?

[Omar Little]

Originally Posted by Jophiel

For another thing, so what? She signed it and now she's looking for recourse. Yay her, I guess. She's not out doing anything wrong, she's seeking a legal civil system solution to a legal civil system problem. People seek to revise legal agreements all the time in this modern world. Why should I care about this one or hold it against her?

What incentive does the Restuarant Association have to release her from her agreement? Maybe a monetary one, as I mentioned above. But it could also result in a suit from Cain himself. I highly doubt that we will see any form of release.

What is more likely is that she will violate the agreement and in turn face any potential civil consequences for said violation.

[DianaG]

Which is certainly her right.

[Jophiel]

Maybe. Maybe she'll think it's worth it. Maybe she'll manage to successfully have a surrogate divulge the details. Who knows.

I just don't get the thrust of it. If the point was "Think before you sign something" then sure. But we can't know the future and it was "If you signed something 15 years ago and the circumstances have dramatically changed, you should never avail yourself to the legal system to change things despite that being the entire point of the system or else you're 'wrong'" then I have to scratch my head and wonder why you're so concerned about it.

[Ca3799]

If Cain hit on her at some drunken party, would that one incident be enough to constitute sexual harassment? Would it have to be particularly obnoxious come-on?

[Ca3799]

I also suspect the NDA and the payoff came together and you can't have one without the other. I would be very surprised to find that both parties do not sign a NDA.

[Fotheringay-Phipps]

There's no comparison between the alleged victim and Cain.

Cain would obviously prefer not to talk about it either, but news articles about the story all mention Cain, so he has to respond.

The women involved, OTOH, are anonymous (as far as the public is concerned) so there's no need for them to tell their side to the media.

[DiosaBellissima]

Cain aside, I think there's a deeper answer than just money to the type of situation the OP is describing. Don't get me wrong: certainly doing a financial cost/benefit analysis is going to lead the woman often to taking a settlement, but beyond that, there's also the issue of the humiliation that comes from pressing forward with these types of claims.

Let's say a woman is legitimately sexually harassed by an employer. No doubt, that employer's legal team is going to dredge up every sexual indiscretion that woman has committed and air them in court. Hookups, one night stands, old boyfriends, threesomes, whatever. Even though that stuff is irrelevant (a porn star can get sexually harassed under the right scenarios), there's no doubt that it would be a strong way for the defense to take favor away from that woman's character.

I've done some things in my life and I'd certainly weigh the emotional cost of that dirty laundry being aired, even if they aren't things I'm necessarily ashamed of (I just wouldn't want my grandma knowing).

[Jophiel]

According to Limbaugh, Cain was on Fox the other night saying he didn't violate the non-disclosure because he hasn't named the woman. I find it interesting (though not proof) that his response wasn't "Because I'm not a signatory to the settlement or its terms".

[redtail23]

Originally Posted by Omar Little

I'm not picking a side. I'm arguing that people should honor the agreements that they make.

But she is honoring the agreement that she made. If she were not, she would already be telling her side to the papers.

Or are you postulating that it is somehow inherently wrong to (attempt to) re-negotiate a civil contract (which is essentially what a settlement NDA is), even a decade later, in greatly changed circumstances?

Because I think most business people would disagree. Contracts are re-negotiated all the time, especially when circumstances change.

[Implicit]

Originally Posted by Fotheringay-Phipps

There's no comparison between the alleged victim and Cain.

Cain would obviously prefer not to talk about it either, but news articles about the story all mention Cain, so he has to respond.

The women involved, OTOH, are anonymous (as far as the public is concerned) so there's no need for them to tell their side to the media.

I have no idea what the legalities are, but Cain talking about the incidents may impact the enforceability of the non-disclosure clause. That kind of clause is meant to prevent confidential information being made public, once the information is in the public sphere then all bets might be off.

[Icarus]

Originally Posted by Ca3799

If Cain hit on her at some drunken party, would that one incident be enough to constitute sexual harassment? Would it have to be particularly obnoxious come-on?

In the interest of sorting this all out I think this is a key point. IMHO - we have let the original notion of sexual harassment drift considerably over time. Originally the definition included explicit threats of retaliation by a superior - "sleep with me or you will not get promoted/a raise/will be fired". To that has been added the aspect of a persistent hostile work environment. And unwelcome activity from equals, underlings, customers, etc.

However, there was always the expectation that, if the victim of the unwelcome activity said "stop it" and the perpetrator stopped, then that was then end of it - no explicit harassment. Else some poor lad could say to some lass, "Hi, would you like to go out Friday night?" and she could immediately claim "SEXUAL HARASSMENT!" without even trying "No I don't think that's going to happen..."

[Omar Little]

We'll likely never know if it truly was sexual harrassment or not.

[Dangerosa]

Cain is probably breaking confidentiality agreements: http://abcnews.go.com/Business/herma...2#.TrHLKXK-Vv0

This doesn't seem to be being broken by accusers....according to this, it was witnessed by a few people: http://politicalticker.blogs.cnn.com...nvolving-cain/ And at least one accuser is asking the NRA to release her from her gag. http://www.mynews3.com/content/news/...In4Qqtfiw.cspx

So maybe this story is not being spread by anyone under a gag order.

[Implicit]

Originally Posted by Dangerosa

Cain is probably breaking confidentiality agreements: http://abcnews.go.com/Business/herma...2#.TrHLKXK-Vv0

This doesn't seem to be being broken by accusers....according to this, it was witnessed by a few people: http://politicalticker.blogs.cnn.com...nvolving-cain/ And at least one accuser is asking the NRA to release her from her gag. http://www.mynews3.com/content/news/...In4Qqtfiw.cspx

So maybe this story is not being spread by anyone under a gag order.

Plus Cain admits to briefing people during his failed Georgia Senate primary run in 2004 about the sexual harassment accusations. Seems like there were plenty of people who knew about the complaints.

[LSLGuy]

Seems to me that as a matter of public policy all NDAs associated with lawsuit settlements should be null & void in all circumstances.

[Really Not All That Bright]

Originally Posted by Omar Little

...and it's important to you that your story be heard, then you better damn well not accept a monetary settlement tied to a non-disclosure agreement. You take your chances in court and see it all the way through. If the money was enough for you to walk away...then don't come crying back later.

I agree 100%. By the same token, if you want to be able to talk about how you didn't sexually harrass someone, you shouldn't settle, or should pay more to avoid signing a non-disclosure agreement yourself.

Unlike Professor Dershowitz, I would actually be quite surprised if Cain did have to sign an NDA himself, though I suppose the accuser's attorney might have bargained for one to avoid having his client's name dragged through the mud after the fact.

Originally Posted by LSLGuy

Seems to me that as a matter of public policy all NDAs associated with lawsuit settlements should be null & void in all circumstances.

What public policy goal is served by a blanket recission of non-disclosure agreements?

[RTFirefly]

Originally Posted by Omar Little

It's my understanding that the alleged harrassment occurred at an after hours party where people had been drinking and involved something that Cain said.

And your understanding comes from whom? It's not like the woman gets to share her side of the story here, so what you're hearing is probably the most favorable spin the Cain campaign thinks they can still get away with at this point.

Cain has been responding to allegations made about him. It's not like he initiated these current discussions in the media.

But nonetheless, he's out there telling a story about what happened between him and this woman, and the woman's not allowed to tell it from her side. That seems rather unfair, agreement or no agreement.

The settlement was between the Restaurant association and the accuser. I would suspect that Cain was not even a party to the settlement agreement.

That may be so, but it's not like it's the National Restaurant Association (the 'other NRA' ) that was accused, and would be embarrassed if it turns out Cain sexually harassed her. The only reason for them to require this clause up front, and for them to insist on its being honored now, is to protect Cain. If Cain asks them to release her from the NDA, they've got no apparent reason not to comply.

[RTFirefly]

Originally Posted by Really Not All That Bright

What public policy goal is served by a blanket recission of non-disclosure agreements?

AFAICT, they're usually a way of bribing/bullying individual citizens to keep their mouths shut.

For instance, persons who have claimed damage to their properties due to 'fracking' in Pennsylvania have been required to sign NDAs concerning their settlements in order to receive those settlements. It's in the larger public interest that these settlements be known, but if you're some person without much in the way of resources, taking on a large corporation, you don't have many options if they demand a NDA as part of the settlement.

I think freedom of speech is such an essential right that one should be legally able to sign it away only in very limited circumstances, e.g. access to classified intelligence, or information about private individuals or entities that you have access to only because you're a government official or contractor.

[Really Not All That Bright]

Originally Posted by RTFirefly

...it's not like it's the National Restaurant Association (the 'other NRA' ) that was accused, and would be embarrassed if it turns out Cain sexually harassed her. The only reason for them to require this clause up front, and for them to insist on its being honored now, is to protect Cain. If Cain asks them to release her from the NDA, they've got no apparent reason not to comply.

Cain was an employee of the "NRA" at the time of the alleged conduct. They would certainly be embarrassed if it turns out Cain sexually harassed the accuser. They could also potentially open themselves up to additional liability.

For instance, persons who have claimed damage to their properties due to 'fracking' in Pennsylvania have been required to sign NDAs concerning their settlements in order to receive those settlements. It's in the larger public interest that these settlements be known, but if you're some person without much in the way of resources, taking on a large corporation, you don't have many options if they demand a NDA as part of the settlement.

You certainly have the option of not settling.

"Resources" don't mean much in the context of litigation against large commercial entities, at least not when the large entities aren't the ones suing people. Suits regarding things like fracking are typically class actions, and the litigation costs are fronted by mega law firms, not by the plaintiffs.

[jsgoddess]

Originally Posted by RTFirefly

That may be so, but it's not like it's the National Restaurant Association (the 'other NRA' ) that was accused, and would be embarrassed if it turns out Cain sexually harassed her. The only reason for them to require this clause up front, and for them to insist on its being honored now, is to protect Cain. If Cain asks them to release her from the NDA, they've got no apparent reason not to comply.

I make no claim to knowing the law in this area, but aren't employers liable at some point for harassment if they aren't doing something to control the harasser? IOW, can't the non-disclosure agreement be for the sake of the NRA itself?

[Really Not All That Bright]

Originally Posted by jsgoddess

I make no claim to knowing the law in this area, but aren't employers liable at some point for harassment if they aren't doing something to control the harasser? IOW, can't the non-disclosure agreement be for the sake of the NRA itself?

The settlement is for the sake of the NRA itself, and that includes the non-disclosure agreement.

The point of the NDA is- theoretically- to keep the plaintiff from telling all her coworkers how she got thirty grand just because the CEO called her a hot piece (or whatever). The subtext, of course, is that if Cain had a habit of calling every girl in the office a hot piece, suddenly they'd have thirty new lawsuits.

The other underlying purpose is to keep the accuser from testifying if one of those other lawsuits happens anyway.

[Fear Itself]

Originally Posted by Omar Little

...and it's important to you that your story be heard, then you better damn well not accept a monetary settlement tied to a non-disclosure agreement.

If you have been accused of sexual harassment, and it is important to you that your innocence is seen as unambiguous, then you damn well better not pay off your accuser with hush money and a non-disclosure agreement. Take it to trial, plead your case and get a judgement that absolves you of any suspicion. If you try to make it go away because it is inconvenient or expensive to pursue it to the end in court, be prepared to have it bite you in the butt when you run for President.

[RTFirefly]

Originally Posted by Really Not All That Bright

Cain was an employee of the "NRA" at the time of the alleged conduct. They would certainly be embarrassed if it turns out Cain sexually harassed the accuser.

What, do you think they were in a position to prevent him from doing so? How else would it embarrass them?

They could also potentially open themselves up to additional liability.

They settled. The accuser can't unilaterally revoke the settlement.

You certainly have the option of not settling.

Sure you do, and you also have the option of not getting any money, or finding that you've got

"Resources" don't mean much in the context of litigation against large commercial entities, at least not when the large entities aren't the ones suing people. Suits regarding things like fracking are typically class actions, and the litigation costs are fronted by mega law firms, not by the plaintiffs.

And if they're not class actions, but a collection of individual plaintiffs being represented by small-town lawyers who have limited resources themselves? Not everyone gets a "mega law firm" on their side when taking on a big corporation, or even gets to be part of a class action, even when there are similar cases in existence.

And you might be aware that the courts are throwing more roadblocks in the way of class actions lately.

FWIW, in class actions, the very fact of its being a class action makes NDAs impossible.

[RTFirefly]

Originally Posted by Really Not All That Bright

The other underlying purpose is to keep the accuser from testifying if one of those other lawsuits happens anyway.

Like I said, these NDAs are quite often contrary to the public interest.

[RitterSport]

So, OP, say a supervisor asks a subordinate for a sexual favor and is denied. Then, he fires her or otherwise damages her career. She looks at her losses and calculates that they are equal to exactly $35,000.

She goes to the employer and complains. They agree to settle for $35,000, so long as she agrees not to drag their name, or the supervisor's name, through the mud. Fine, she says.

Sometime later, the supervisor is in a public position and word of the settlement comes out. He says that it wasn't really harassment, she's just an oversensitive harpy who screamed when he told a dirty joke.

With these facts, would it be OK for her to ask for the NDA to be lifted? Sure, she settled, but that's because they offered her what the damages were. And, now the former supervisor is saying it wasn't really harassment, when clearly it was.

Is it OK with you now?