A fourth woman has come forward and publicly accused GOP presidential candidate Herman Cain of sexually inappropriate conduct that allegedly took place in July 1997 while he was president/CEO of the National Restaurant Association (NRA). Sharon Bialek, a former employee of a foundation associated with the NRA, allegedly contacted Cain at that time in an effort to request his help seeking new employment after she lost her position with the NRA related foundation. From various reports, it appears that she was seeking both advice about employment with the NRA as well as seeking possible advice for jobs with other entities.
Bialek claims that when she came into town and checked in at her hotel, she discovered Cain had upgraded her room to a very expensive suite. They then went out to dinner and presumably discussed employment prospects. When they got back in the car following the dinner, Bialek alleges Cain placed his hand up her skirt and pushed her head towards his crotch. When Bialek rebuffed Cain's advances, Cain allegedly stated: "You want a job, right?" Reviewing the definition of sexual harassment contained in my prior post, these allegations, if true, would likely constitute sexual harassment.
While Bialek was the first to make her accusations publicly, another one of the three "anonymous" accusers has now come forward. Karen Kraushaar recently came forward and claims that she has documentation setting forth the details of Cain's harassment of her while she was employed by the NRA. It now appears she was paid $46,000 - a year's salary - in exchange for a release and agreement to keep the details of her claim private. She has since been released from the confidentiality provision of her agreement.
Also, Ms. Bialek's former boyfriend, a pediatrician named Dr. Victor Zuckerman, has come forward and confirmed that at immediately after Bialek returned from the meeting with Cain that she told him that Cain had groped her in her car.
Cain has unequivocally denied he ever engaged in sexual harassment ever at any time. He has also publicly stated that when he saw Ms. Bialek on television that he could not recall ever meeting her. One person, however, claims to have seen Cain and Bialek together only a few weeks before she went public with her allegations. Moreover, Bialek's former boyfriend also disputes Cain's claims that he never met Bialek.
Cain has also come up with a number of different hypotheses as to the motivation behind these four women's allegations. He has claimed at various times that that his GOP rival for the presidential nomination, Rick Perry, was behind the allegations. He now is blaming the "Democratic machine" for prompting these women to come forward. He has also claimed that Bialek was motivated to come forward for money and provided the press with a laundry list of details about her alleged financial problems. The problem with Cain's accusations, however, is that Bialek could not bring a legal claim against Cain at this time because too much time has passed since the alleged assault.
I thought this might be a good opportunity to discuss the so-called "he said / she-said" case where there are no other witnesses to the harassment or discrimination other than those two individuals who were in the room together. I often have people who call for advice and ask if there is anything they can do if they were subject to sexual harassment but no one else witnessed the conduct. The answer is yes!
Unlike a criminal trial where the prosecution has to prove guilt "beyond a reasonable doubt," a plaintiff in a civil discrimination claim needs only to prove their claim by a "preponderance of the evidence." Proving something by a preponderance of the evidence simply means that the plaintiff was able to prove a fact by the "greater weight of the evidence." Another way of looking at it is to say that if you credit the plaintiff's version of the facts at 51%, then the plaintiff has met their burden of proof. On the other hand, if you only credit the plaintiff's version of the facts at 50%, they have not met their burden because they have not proven their case by the greater weight of the evidence.
It is also important to consider what types of evidence a court will consider. Typically, a court will allow the introduction of "relevant evidence," that is, evidence that tends to make the existence of any fact that is of consequence to the determination of the case more or less probably than it would be without the evidence. Evidence typically takes the form of witness testimony and documents. One witness' testimony, if credible, can be enough to prove discrimination or harassment.
So despite the fact that this has been characterized by some as a "he said / she said" type of situation, is that the reality here? Remember, the credibility of the two people involved - Bialek and Cain - would be what a jury likely would base their decision upon. Here, Bialek's allegations are not bare. There are three other women who also have claimed he engaged in sexual harassment towards them in the same time period. It is difficult for the average person to believe that four different women would make the same allegation against Cain if it didn't happen. It also would undermine any claim by Cain that Bialek "misinterpreted" anything that allegedly happened between them.
The statement by Bialek's former boyfriend also shows she is likely not making up these allegations. Her contemporaneous statement to her boyfriend makes it much less likely that she is now making this up for political or financial gain. The fact that she has repeatedly alleged Cain sexually harassed her over a period of time would likely make her a more credible witness.
While Bialek's credibility has arguably been bolstered, Cain has likely experienced a significant amount of self-inflicted damage to his own credibility. First, Cain's changing statements as to the motives of these women detracts from his credibility. It's the Democrats. No its Perry. Now its money. Which one of these women is doing it for money? Which one is the Democratic stooge? And which one works for Perry? Or do they all fall in every camp? And is there any evidence to support any of these allegations? None yet. Cain's changing narrative as to the motivations of these women has severely damaged his credibility and made him look desperate.
Moreover, Cain's unequivocal statement that he had never met Bialek before is also harmful to his credibility. Her former boyfriend and at least one other source claim that he did in fact meet Biaelk. And again, one has to ask how Bialek can recall details such as the hotel she stayed at, where she and Cain went for dinner, etc. if they had never met. Is she really that good of a liar? There are likely a number of ways to corroborate her story with credit card receipts, transportation tickets, hotel reservation information, that the likelihood that she is making up the meeting between the two is highly unlikely. Moreover, the statements by two other people that they know for a fact Cain and Bialek have met before also does damage to Cain's credibility.
What this shows is there are often other things, or circumstantial evidence, that tend to bolster one party's credibility or weaken the credibility of the other. Given the "preponderance of the evidence" standard necessary to succeed in a civil harassment claim, it is possible to win in a case of sexual harassment where there are no other witnesses to the harassment.
There is one other thing to consider that likely would not be allowed into evidence in court. The amounts paid to the former NRA employees to settle their harassment claims are typical of the settlements paid in these types of claims. Cain's claim that these were some type of paltry or token severance amounts is not supported by the facts. Food for thought.
