Posted on 11/01/2011 2:21:28 PM PDT by ColdOne
One of the women who accused GOP presidential candidate Herman Cain of sexual harassment wants to tell her side of the story but is barred by a confidentiality agreement, her attorney in Washington said Tuesday.
Lawyer Joel P. Bennett called on the National Restaurant Association, where the woman and Cain worked in the late 1990s, to release the woman from her written promise not to talk about the allegations or disparage the trade group.
(Excerpt) Read more at washingtonpost.com ...
this is yet another reason women have no business in the workplace with men.
Bad mouthing? When did Cain bad-mouth the alleged complainants? Denying the charges supposedly leveled against him is not bad mouthing. Even Cain has every right to defend himself. Bad mouthing would be saying gratuitously nasty things designed to besmirch the person’s reputation. Kind of exactly what Politico did with this crappy yellow journalism.
Sexual harassment and the Rights of the Accused
By Neil E. Klingshirn
Contents
Sexual harassment and the Rights of the Accused
What happens if the accusation is false?
Do the Wrongfully Accused have Any Rights?
When will an employer become liable for a false accusation of harassment?
What should careful employers do to respect the rights of the accused?
What should I do if I am wrongfully accused of harassment?
What’s the bottom line? Will the laws protect me against a wrongful accusation?
Sexual harassment and the Rights of the Accused
Federal and state laws protect employees from harassment because of sex in the workplace. As a result, almost all employers today have policies that
prohibit sexual harassment
encourage employees to complain about sexual harassment;
provide for prompt investigations into sexual harassment complaints; and
require appropriate corrective action for violations of the sexual harassment policy.
In many cases, corrective action means immediate termination of the accused.
back to top
What happens if the accusation is false?
Employers can take no corrective action against the accused and can even discipline the complainant for a false complaint. However, the employer runs the risk that, if the accusation was true, the victim of the harassment can take it to court. Thus, employers often take no chances. They opt for firing the accused, who has limited rights under federal and state laws to challenge their termination.
back to top
Do the Wrongfully Accused have Any Rights?
Not directly. An employer is free to terminate an employee for no reason or even a bad reason, so long as it is not a reason prohibited by law. Discharging an employee based on a suspicion of improper behavior is not unlawful, even if the suspicion is not correct. Thus, the law does not prohibit an employer from taking the easy way out of a difficult situation by terminating the accused.
However, if the real reason for the discharge is unlawful, covering up the real reason with a false accusation of harassment can lead to employer liability.
back to top
When will an employer become liable for a false accusation of harassment?
A case in Wisconsin illustrates what can happen when an employer discharges a falsely accused employee for the wrong reasons. In the case of Mackenzie v. Miller Brewing Company:
A male manager told a female co-worker about a racy Seinfeld episode. In the story Jerry forgot the name of his date. Her named rhymed with a female body part. He eventually remembered that his date’s name was Dolores.
The female co-worker “didn’t get it,” so the male showed her the body part in an anatomically correct dictionary. She later complained to his supervisor that she was offended. He apologized. Company attorneys questioned him and the company fired him two hours later.
At trial, the jury (10 women, 2 men) did not believe that the female co-worker was actually offended by the Seinfeld discussion. Instead, the jury found that she had made similar and more graphic references at work; and
She had learned that she would soon report to him and did not want to do that. Moreover, the supervisor that she convinced to fire McKenzie had earlier intentionally interfered with McKenzie’s ability to obtain a promotion by telling upper management that he was not suitable for promotion, then lied to McKenzie about it.
The jury based its award on some unique features of Wisconsin law and the facts of this particular case. However, the resulting large verdict received significant media coverage. As a result, careful employers believe that they should respect the rights of the accused.
back to top
What should careful employers do to respect the rights of the accused?
First, someone accused of workplace misbehavior has the same rights as anyone else to be free from discrimination. An employer thus cannot punish the accused more harshly than someone outside of the accused’s protected class. In other words, if the accused is a 50-year-old manager and the owner has condoned the same or similar behavior by a younger member of management, the owner runs the risk of an age discrimination suit if it treat the 50-year-old manager more harshly.
Second, conduct a thorough investigation. An employer should not conduct a “Kangaroo Court” unless it wants a jury second guessing what the employer might have found if it had looked at all of the facts.
Third, an employer should act on a good-faith belief that the allegations are true before taking adverse employment action. If the employer does not believe that the accusation is true, a jury probably will not believe it either. Since a jury can base a finding of discrimination or retaliation on proof that an employer’s stated reason for termination is false, a false accusation can lead to discrimination or retaliation liability.
Fourth, an employer may not defame an employee. Although employers generally have a defense against defamation suits for disclosing an employee’s performance related information, the employer can lose that defense by maliciously publishing false information or by disclosing the false information to people who do not “need to know” the results of the investigation.
Fifth, an employer cannot conduct a criminal background check using an outside agency without an employee’s prior consent to the background check. Similarly, an employer cannot take action on a background check by by an outside agency before it notifies the employee of the result of the investigation. The right to consent to an investigation and to see the results of the investigation do not, however, apply to investigations conducted in-house by the employer or its attorney.
back to top
What should I do if I am wrongfully accused of harassment?
We suggest that you:
Hire experienced employment counsel.
Insist on a thorough, unbiased investigation.
Object strenuously to witch hunts;
Ask to see evidence or other support for a “good faith belief” that you engaged in sexual harassment or other inappropriate conduct;
Obtain assurances that the investigation into the allegations are disclosed only on a “need to know” basis;
Question whether the punishment, if any, is evenly applied.
back to top
What’s the bottom line? Will the laws protect me against a wrongful accusation?
Not always. At best, most safeguards against wrongful accusation are procedural or offer little actual protection.
However, if you are accused of sexual harassment, know your rights. Fortney & Klingshirn has successfully represented hundreds of Cleveland, Akron and Northeast Ohio individuals and employers in sexual harassment and other employment matters.
True dat!
Even Hannity was parroting that line today, said Cain has mishandled this and should not have let this go on for this long.
This is what, effectively the second day?
A year from now she will have posed nude in playboy.. we have seen this story before.
fox is repeating the Rove mantra.
must be an employee of planned parenthood.
At any rate, I'm thinking this is going to back fire and ignite a flame of support for Cain....the people are savvy enough to see through this.
Unless some bomb shell comes out, which I highly doubt, I'm leaning even stronger in his direction!
Amazing how the press and Media attack Cain, but then defended Bill Clinton in office.
Hey press/meida... Conservatives don’t care since you ALWAYS give passes to Democrats why you Trash conservatives.
Many of know who the woman is
Her name is Anita Hill. At the time she served as second assistant to the Deputy counsel of the Association
THIS SURELY WILL, BINGO
Former President of National Restaurant Association has Ties to the Mitt Romney Campaign
http://www.freerepublic.com/focus/f-bloggers/2801104/posts
I don’t know. So much of what is known is speculation.
But (and I had to read the d*mn politico story to answer this, which I have been really trying to avoid, thank you), the story sure doesn’t READ like they got the information from the women.
First, they say that “sources” gave them the information. Later, they say they “confirmed the identity of the women”, which would make no sense if the women were the source (they wouldn’t have to confirm them). Of course, they could be trying to cover for one or the other of the women).
Politico later put it this way: “POLITICO learned of the allegations against him, and over the course of several weeks, has put together accounts of what happened by talking to a lengthy roster of former board members, current and past staff and others familiar with the workings of the trade group at the time Cain was there.”
Anybody who knew of the investigation could have leaked the story; once Politico knew what it was asking about, it could have actually learned the rest without talking directly to the women. Or, they could have eventually talked to the women, who may not have given them details, but may have confirmed the story.
Levin tonight was speculating that a confidentiality agreement might itself be confidential — if so, Levin said, Cain could be violating it by talking, and the women would have violated it by confirming it.
Since I’d rather not believe that Cain would violate a confidentiality agreement, at this point I’m assuming that everything Cain has told us is OK to reveal under the confidentiality agreement. That doesn’t mean it would be OK for the women — again, without the actual agreement, we don’t have enough information.
I don’t want to be misunderstood. I have no interest in the charges. It’s too easy to charge harrassment, and any reasonable organization would settle for a few month’s salary to be rid of a complaint. I don’t think the charges are damaging to Cain. I assume he is correct that he didn’t really harrass anyone, and that at best the women misinterpreted what he did (at worst they were just looking for money).
So I pretty much would have been fine with any solid answer from Cain. Especially if he said “I never sexually harassed anyone. I cannot comment on the specific allegations in the Politico piece because they deal with matters which, if accurate, would be covered by non-disclosure.”
I’ll have to read the link in depth later but yeah, this smacks of mittens abd rove.
Thanks for the info ;)
Here comes the scum liberal, thieving shysters looking for a payday.
Mr. Cain is a good man.
It’s time to rip the leftists a new AH.
That Nazi propaganda Politico needs to be crushed, along with the racist Washington Post.
Because the lefty operative who gave Poloitico this crap also gave it to every other left wing rag. When she finally gets a high enough bid to tell her story any guesses on her voting history?
That all presupposes that Cain signed a settlement or an agreement. If he did not sign, he is under no obligation of confidentiality at all.
The only thing I could find that was disparaging that wasn't a denial was this report that Cain "recalled that her supervisor believed her performance “was not up to par at the time she left the NRA.”
Pulled on 11/01/2011 4:50:06 PM PDT by Admin Moderator, reason:Phoney misleading blog title for a bunch of bunk, stuff and nonsense,
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.