I have already written about the Herman Cain story and won’t opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story. The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint of harassment has been made. And before you start sending me the hate mail over this HSO, read the remainder of this post.
Over ten years ago I represented a male manager who was accused of sexually harassing a young female subordinate (I’ve taken some literary license with the story to protect the innocent and preserve privileged information). The male manager was accused, in writing, of making quid pro quo sexual advances, offensive comments of a sexual nature and engaging in unwelcome touching. Equally concerning was the fact that the complaining party had an affidavit from another young co-worker vouching for the alleged victim. My client was married and had small children. He was on the verge of losing his job and having a difficult story to tell his wife as to why he lost his job.
Thankfully, the corporation receiving the complaint didn’t panic or rush to judgment. It carefully investigated the complaint. During the course of the complaint, the witness who signed the affidavit confessed that she made up the allegations. She said she signed the affidavit, even though it wasn’t true, because the alleged victim approached her; said she was going to sue the company (and the manager) for a lot of money and promised to split any settlement if the co-worker is she would sign an affidavit supporting her claims. I can tell you that this almost never happens (at least the falsity of the complaint not usually discovered this conclusively) and in most harassment investigations the complaint is either corroborated to some extent or not corroborated (usually because it is a swearing match between the victim and accused).
The company’s investigation vindicated my client. Despite the evil thing that had been done him, and the potential catastrophic effects it could have had on other aspects of his life (i.e., his marriage, current and future career prospects and reputation) he had no recourse. He couldn’t sue for defamation because the complaints were made in a forum where statements were absolutely privileged. He couldn’t seek sanctions from a court because we hadn’t gotten to court yet. Perhaps he could have pressed charges against the complainant for making a false complaint to a government agency. At the end of the day, he had little if any, recourse. Should an employee making a false accusation of harassment have more protection and rights than the person (male or female) who is accused?
Unlawful harassment is reprehensible; it sometimes happens in the workplace; and should not be tolerated. However, perhaps its time to ensure that there is recourse for those individuals who are wrongfully accused of such a heinous act. Unfortunately, the likelihood of that happening is about as likely as Herman Cain being elected President in the face of this scandal.
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