GOP presidential contender Herman Cain has been in the
news for more than his political platform recently. Instead of addressing
issues like job creation, Cain has been facing tough questions about on-the-job
harassment. Specifically, Cain is having to deal with charges of unlawful
harassment leveled against him when he was the head of the National Restaurant
Association in the 1990s.
There likely are multiple lessons that can be learned
from this story but I'll offer you just one. In short, employers should not
dissuade this news story from settling a lawsuit or charge of discrimination
brought by a current or former employee.
Contrary to what some of the pundits may claim, lots of
people and businesses settle lawsuits even though they know they've done
nothing wrong. This is the reality of today's litigious society. There are a
multitude of factors that get weighed when deciding whether and when to settle
a lawsuit. But the equation is always based on business factors and is, by no
means, an indication of "guilt" or "innocence."
In fact, most settlement agreements include a
confidentiality provision, whereby one or both sides agree not to disclose the
terms of the settlement or to discuss the facts underlying the lawsuit.
Sometimes, though, this is not the case, and, for a variety of reasons, the
parties may agree in advance to what will be said, thereby ensuring that
neither steps over the line and leaving no room for misunderstanding.
Which brings me back to Mr. Cain's story. The individual
who is claiming that she was harassed by Mr. Cain apparently entered into a
settlement agreement to resolve the matter. It seems that, pursuant to the
agreement, she received a settlement payment in exchange for her dropping her
claims. Presumably, the agreement also included a confidentiality provision.
And, presumably, she violated the provision by releasing information about her
claim or the settlement. If that is the case, and she did renege on her
promise, those who are following the story should consider how reliable the
source really is.
But employers should, in my opinion, disregard the story
altogether for the purposes of deciding whether or not to settle a lawsuit or
potential lawsuit. Stick to the facts as applied to your particular business at
this particular time. Settling a lawsuit is not, contrary to what some of the
pundits might have us believe, an indicator of wrongdoing.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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