Experts Doubt Cain's Response To Harassment Report

Oct 31, 2011
Originally published on October 31, 2011 10:50 pm

Republican presidential front-runner Herman Cain has stumbled before, and on big issues ranging from his position on legal abortion to the effects of his radical flat tax plan on the poor and middle class.

But his response to a Politico report that he faced two sexual harassment complaints that were settled with cash payments more than a decade ago presents a new kind of threat to his cometlike ascendancy in the Republican race.

"He has surged in the polls because he had a clear economic message," says conservative pollster and strategist Kristen Soltis. "This is a huge obstacle for staying on that message."

Cain is essentially tied for the lead in two major new polls, one out of Iowa, where the primary and caucus season kicks off Jan. 3, and one out of Texas, where he is running even with that state's governor, Rick Perry, in the race for the GOP presidential nomination.

Soltis' advice to Cain? Get the truth out because, as always, she says, "the longer it's strung out, the more damaging it becomes."

Cain's attempts to get out his version of what happened with the two women who worked for him when he headed the National Restaurant Association in the late 1990s, however, have only raised more questions, including those of his own veracity.

Campaign officials first attempted to discredit the story with a blame-it-on-the-Beltway-media gambit. Then Cain himself declared Monday on Fox News that he had been "falsely accused" of harassment when he headed the National Restaurant Association. In later comments at the National Press Club, Cain said he was a victim of a "witch hunt."

And the settlements with the women?

If there were agreements, Cain said, he "wasn't aware of it." They would have been handled by "people who worked for me," he said.

"I am not aware of a settlement that came out of" the accusations, he said, adding that he "recused" himself from settlement deliberations, leaving the work to his general counsel and human resources official.

Cain's claims of ignorance about financial settlements with the complainants have struck employment law experts as highly improbable.

For Cain not to have known that the association settled sexual harassment complaints against him "would be highly unusual, extremely unlikely, and I would be shocked if that were the case," says Patricia Barasch, president of the National Employment Lawyers Association.

Bruce Fredrickson, a Washington-based employment lawyer, had a similar take.

If the women's complaints were directly against Cain, which the Politico story alleges, "his account would be rather implausible to me," said Fredrickson, past president of the National Employment Lawyers Association, particularly if the complaints were resolved with a monetary settlement.

Politico characterized Cain's alleged inappropriate behavior as ranging from conversations "filled with innuendo or personal questions of a sexually suggestive nature" to physical gestures the women "regarded as improper in a professional relationship."

Cain's account would become even more questionable if the women had pursued their complaints through the federal Equal Employment Opportunity Commission, or through the courts.

In an interview Monday with Bloomberg News, Cain said that the EEOC had investigated allegations he sexually harassed an employee and found "no basis" to pursue the case.

Cain's assertion that he was falsely accused by the women could also violate the settlement's nondisclosure agreement, say employment law experts, depending on how that agreement was written.

A typical resolution often prevents both parties from discussing the underlying allegations that led to the settlement, permitting only a public acknowledgment that the matter has been settled to the satisfaction of the parties, according to employment lawyers.

Sometimes, however, confidentiality agreements only restrict the person making the complaint.

If the association's settlement with the women also included a non-disparagement clause, his statements that essentially accuse the women of lying could also violate the terms of the agreement.

Cain headed Godfather's Pizza before taking the helm of the National Restaurant Association in 1996. He left the lobbying group in 1999.

The women involved in the sexual harassment complaints against Cain have been bound by a nondisclosure agreement signed as part of the settlement, according to Politico.

GOP strategist Ed Rogers characterized Cain's past 12 hours as "the definition of off message."

"We are going to find out who the accusers are," Rogers said. "We are going to find out if there's any paperwork. The usual suspects will howl that this disqualifies him, and some will say the political statute of limitations has run out."

Rogers dismisses suggestions that another Republican presidential candidate may be behind the harassment revelations.

Cain is a "placeholder" in the polls, Rogers says, a candidate for people waiting to commit to another.

"Any campaign would be terrified of getting caught — and [former Massachusetts Gov. Mitt] Romney, in particular, has to "handle Cain gently," Rogers says. "He needs to be the second choice of Cain supporters."

Rogers advises Cain to "be still," and let his campaign manager talk about the issue off-camera.

"Let the wave of this crest over him," Rogers says.

Given the events of Monday, and Cain's explanation — found wanting by a range of conservatives, including the president of Concerned Women for America — that wave won't be cresting for awhile.

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