A Lesson For Employers From Herman Cain’s Sexual Harassment Case

By Philip M. Berkowitz

The highly publicized accusations of sexual harassment made against Republican presidential candidate Herman Cain remind us why these kinds of cases can cause so much damage to the reputations of an accused harasser — and the employer.

The way the accused executive responds to allegations of this nature can make all the difference to a successful defense. And, when a high-level executive is accused of sexual harassment, it may be the employer whose reputation is most prominently dragged through the mud.

Regardless of whether the charges against Cain are true, he was, not surprisingly, upset. His response, however, was not only to strongly deny the charges, but to lash out at others. He blamed the alleged victims and claimed that he was a victim of a smear campaign orchestrated by unnamed people in the “Democrat machine,” as well as the press.

Public opinion as a weapon

This response, seen in a national television press conference he convened, damaged Cain’s candidacy. Indeed, national polls showed his support among Republican women dropped nearly by half after this issue surfaced.

Of course, plaintiffs’ counsel often tries to use public opinion as a weapon. The threat of bad publicity can be used to extract a favorable settlement. It can also cause immense distraction, and make it difficult for the defense lawyer to marshal facts and properly defend the client.

In the civil context, negative publicity can affect the executive’s and the employer’s ability (and right) to receive a fair trial. Juries and even judges can be influenced by publicity.

Littler Mendelson Attorney Philip Berkowitz
Littler Mendelson Attorney Philip Berkowitz

If criminal charges are a possibility – particularly if the claims involve alleged sexual assault, as was the recent case involving French politician Dominique Strauss-Kahn – publicity can make all the difference in the prosecutor’s decision whether to pursue charges.

The U.S. Supreme Court has recognized that a lawyer need not stand by while an adversary damages a client’s public image. In Gentile v. State Bar of Nevada, the Court struck ethics rules restricting lawyers from commenting publicly about claims made against their clients, and held: “An attorney’s duties do not begin inside the courtroom door … an attorney may take reasonable steps to defend a client’s reputation … including … in the court of public opinion.”

Did Cain also need PR counsel?

Courts subsequent to Gentile have even recognized that lawyers may retain public relations specialists to aid them in advising their clients on how to manage this aspect of the case. In fact, communications between counsel and the public relations firm, and the firm and the client, may be protected by the attorney-client privilege. See, e.g., In re Grand Jury Subpoenas, (S.D.N.Y. 2003).

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To this observer, Herman Cain could have benefited greatly from the assistance of competent public relations counsel. Perhaps even more embarrassing than his own defensive, angry response was that of his counsel, who ominously warned other women who may have been victims to “think carefully” before they came forward.

What could Cain have done? First, he could have acted like a President and not a candidate. Voters could rightfully ask, if this is how he responds to accusations of this nature as a candidate, how would President Cain respond in a real crisis? He could have been counseled not to blame others or to become angry and defensive.

Communicating respect for the process

The same holds true for an executive and the employer: when dealing with personal workplace sexual harassment allegations, keep the perceptions and interests of employees, colleagues, customers or clients and other stakeholders in mind before publicly responding to the situation.

Of course, a strong denial and condemnation of inappropriate behavior is a reasonable part of an executive’s response. But an executive involved in any type of crisis, particularly one as personal as Cain’s, should communicate respect for the process, even if he or she strongly denies the accusations. Angry denials and thinly veiled threats of retaliation can be disastrous – not only for the executive, but, in a claim of workplace sexual harassment, for the employer.

We will see how Herman Cain and his candidacy weather this storm. But employers can draw a lesson from such events.

Providing competent legal assistance to an executive in this position includes understanding how a response will be perceived in the court of public opinion. This is essential not only to the executive’s reputation, but to the executive’s and the employer’s legal defense.

Philip Berkowitz is the U.S. practice co-chair of the International Employment Law Practice Group at the law firm Littler Mendelson. He advises multinational and domestic companies in a wide range of industries on employment-related matters. He has significant experience advising multinational companies regarding U.S. and overseas employment and executive compensation practices. He represents employers in individual and class action lawsuits and arbitrations, and he appears in U.S. federal and state courts and before administrative agencies and international arbitration tribunals. Contact him at npberkowitz@littler.com.