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).
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”.
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.
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.
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…”
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.
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.
What public policy goal is served by a blanket recission of non-disclosure agreements?
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.
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.
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.
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.
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.
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.
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.
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.
What, do you think they were in a position to prevent him from doing so? How else would it embarrass them?
They settled. The accuser can’t unilaterally revoke the settlement.
Sure you do, and you also have the option of not getting any money, or finding that you’ve got
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.
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.