In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Herman Cain, Bill Clinton, and the Myth of He Said/She Said
Years ago, I worked for a Fortune 50 company. Though the company was best known for its postage meter machines, I worked for their photocopier division. They hired me at an entry level outside sales position, and flew me to Seattle for a three day “How To Sell Copiers” training. (And yes, it was exactly as exciting as it sounds.)
With a few exceptions, everyone that had been flown in for the training from around the West Coast was in his or her mid-twenties and about 60% were women. This made it especially uncomfortable when, an hour into our first morning session, we were “treated” to a visit and pep talk from the regional Vice President of the company. He was, I believe, somewhere in his mid-sixties; everything about him looked grey, bloated and pasty. He brought with him a young, very attractive blond woman who had just led the Seattle office in sales for the last two quarters. He offered her to the women as an example of the success they might achieve if they worked hard; as he lightly stroked her back, he offered the ability to have “gals that look like this” working for them as a carrot for the guys. Later that night, another Vice President (male and mustachioed) took us all out to dinner and, among other things, explained how the new President of the division – the first women President of the division ever – had gotten the job “on her back with her legs straight up.”
Six months later we were notified that our acting manager, a completely different man who managed offices in the Bay area and Colorado as well as our own, was being terminated. He had impregnated the top sales person in our office, and – we would find out in the next month – had similar issues with female employees at the other locations he oversaw. For this and many other reasons, I quit without giving notice shortly thereafter – the only time in my life I have ever just walked out on an employer. It was the kind of life experience that makes you feel the need to shower, and as I left I swore I would never again have anything to do with the entire subject of sexual harassment.
Ironically, over time the experience has had the opposite effect in my professional life.
Part of what I do in my current job is help employers create cultures that avoid the loss of productivity and specter of potential lawsuits associated with hostile work environments. Combating any kind of hostile work environment is rewarding, of course, but because of my experience with the Fortune 50 employer I feel especially passionate about preventing sexual harassment issues. My team does trainings for managers, crafts policies and procedures for HR departments, and steps in to assist with investigations when complaints are made. And because of this experience, I feel like I can go out on a limb and say, with very little doubt, that Herman Cain is full of it.
One of the prevalent myths that exist in the media about sexual harassment is that cases are based on a He Said/She Said scale of believability. The story we hear on talk radio about someone losing a million dollar lawsuit because someone told a dirty joke is a folk tale. In fact, here is something that the media rarely mentions in the midst of their salacious drooling: the courts don’t really care who is telling the truth in a He Said/She Said scenario. That’s right; as an employer, you can’t be held responsible for something inappropriate one of your employees might say or do.
You can get your ass sued off, however, over the question of what you did or didn’t do to protect your harassed employee when you were made aware of the situation, and what you did beforehand to make people aware of their rights and responsibilities. And God help your bottom line (or, more likely, your future Employers Professional Liability Insurance premiums) if you blew off either of these obligations.
A few days ago we were giving a SH training and I was asked what I thought about the two payouts to Cain employees that had just hit the news. My answer: “It’s going to turn out that there were more of them.” Because it is almost unheard of for an insurance company to be forced to pay out multiple unrelated settlements for the same defendant. Usually problems within an organization that affect an insurance company’s ability to successfully defend a claim are fixed after the first settlement.
There are times, of course, where anyone might have one claim against him or her in any kind of hostile work case. Sexual harassment might have actually occurred, or an aggrieved employee might trump up allegations, or (more likely than either of those, I will tell you) two people might just have wildly different, honest interpretations about what transpired. But the people in charge of the organization are supposed to investigate, re-train, take actions, or make personnel changes to ensure it doesn’t happen again. Remember, it is not a case of He Said/She Said, but a question of how upper management chose to respond to the initial complaint. The person in charge of the Restaurant Association at that time was Herman Cain. A different accusation from a different person after having gone through the experience the first time – and the Association still being in a position where their insurance company rolled over – suggests a far deeper problem with the Association, and with Cain himself.
The media treats sexual harassment cases similarly to the way they treat stories about secret mistresses. After all, it’s the sex that sells the story, right? The important thing for the cable news networks is, “Somebody Famous is Boinking Someone They Shouldn’t,” along with, “Is the Other Woman Hot and Can We Google a Sexy Photo of Her?”
But sexual harassment isn’t the same as infidelity. Sexual harassment, at the end of the day, is about the abuse of power. What’s more, it’s about a particularly denigrating and malicious abuse of power. I would go so far as to say that if someone has a pattern of perpetrating sexual harassment, he is the last person you want in power over others – and you should vote accordingly.
Republicans are now saying that the cases against Cain (by my count four as of this writing) are irrelevant and probably make-believe. Democrats are now saying that Cain’s actions are an outrage. This is all BS, of course. The truth is, for any reason other than political point scoring neither party – each a poster child for perpetual abuse of power – gives a crap. If a similar scandal were to break tomorrow about Obama, we all know exactly how quickly everyone would change horses.
Oh, wait! We don’t have to make up a scenario with Obama. We can just look back to his Democratic predecessor. If ever there were a cautionary tale about how both parties treat harassment, it can surely be found in the tales of Wild Bill. In a lot of ways, it was perhaps one of the most depressing episodes of modern American politics.
The Republican machine that went after Clinton so viciously for being unfaithful to his wife gave away its own lack of seriousness about the deeper, more troubling issue of sexual harassment. Democrats accused them of being on a political witch-hunt, and in that were certainly correct. The way the GOP painted the Clinton scandal, the pertinent issues were being unfaithful to one’s wife and then lying about it. Which only made them look worse as the Republican leaders of the House and Senate leading the anti-Clinton/pro-Values charge started getting caught with their own pants down.
But in all of the “who’s sleeping with who” hubbub, hardly anyone focused on what should have been the real issue, which was this: The President of the United States, the most powerful man on the planet, had chosen to fool around not with a model, or actress, or porn star. Rather, he chose a young, powerless and less than fully emotionally mature intern-turned-staffer whose work fate he directly controlled. And when she appeared to perhaps have unrealistic feelings about where the relationship might be heading, the White House unceremoniously shipped her off to work at the Pentagon. Worse, the facts around the Paula Jones case suggest that this seems to have been a pattern with Clinton.
That the Democratic Party, self-described champion of women’s rights, could look the other way when their guy was in power was bad enough. That they actually joined in the brigade of publically painting a young female victim as a slut was even more shameful.
The Republicans of the time were no better, of course; based on their embracing of Cain this past week they have not improved a lick since.
The current responses to the Cain scandal on both sides of the political spectrum are also depressing. Pundits on the right, of course, should be ashamed for giving him a pass. They continue to do this despite the fact that he has to change his story every time new facts come to life. It appears they have decided to use the “paint the victim as gold digger” strategy as well. The left punditry is almost as bad. Pick a blog or column at random, and here is the message you find: The real scandal is what a terrible response team Cain has, and how it shows he is a very poor candidate and not a serious Presidential contender.
The real scandal is the sexual harassment.