Herman Cain scandal: Conservatives aren’t just defending him; they’re denying the very existence of sexual harassment.

The law, lawyers, and the court.
Nov. 4 2011 6:44 PM

Never Happened

Conservatives aren’t just defending Herman Cain. They’re denying the very existence of sexual harassment.

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But leave it to former Sen. Fred Thompson to really elevate the debate. In a riotously funny column penned in Cain’s defense, he too blows the whistle on the whole “sexual-harassment scam.” Because it is, as he conceives of it, a talentless woman’s golden ticket to fame: “These alleged victims and their lawyers—no matter what they may say publicly—are champing at the bit to come forward for their day in the limelight and the inevitable book deal.” Just think of all the famous sex-discrimination memoirs you’ve read recently. Yeah, me too. Or as my colleague David Weigel notes, “My idea of frothy fun would be to make accusations of sexual harassment against a powerful person, become a notorious figure whose life and character came under microscopic examination, and then spend the rest of my life living in a legal system shaped by the man I accused.”

The claims that women (and only women) invent sex-discrimination cases for personal fame and fortune are absurd on their face. They are also so steeped in sex stereotypes as to boggle the mind. Can you imagine a chorus of pundits accusing men of filing frivolous lawsuits so they can make millions and get famous? This is all, of course, part of the larger war on plaintiffs and trial attorneys that has been waged by the right for decades in an effort to cap jury awards and protect big businesses from suit. But it’s certainly a new trick to say that a whole area of law—blessed by no less a liberal hack than William H. Rehnquist—is a mass delusion of hyper-sensitive ladies.

This isn’t just an effort to discredit Cain’s accusers. It’s an effort to dissuade women with genuine complaints from coming forward to report them. Recall that one of Cain’s accusers has declined to come forward precisely because she is afraid to be the next Anita Hill. The cost of reporting harassment is not just “the filing fee and a printer.” It’s the fear of being treated precisely the way these still-nameless women have been treated: like hysterics and liars out of the Chaucer era.

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The real lies here are the claims of millions of frivolous suits in which jurors award liars with pots of money and television contracts. The legal standard for proving a hostile work environment is high and usually requires showing a pattern of bad behavior. If anything, experts say that the current system under-punishes as opposed to over-punishes, and that most victims of sexual harassment on the job will never come forward at all. As E.J. Graff puts it: “If she leaves and sues, she ruins her standing in her field. She rarely wins—studies show that judges overwhelmingly throw out sexual-harassment allegations on summary judgment, before the case ever goes to trial—unless the behavior is so egregious that even the company’s lawyers know that juries will be appalled.” Sex discrimination still runs rampant. Ian Millhiser cites a new University of Michigan study finding that “one in 10 women in the workplace will at some point be “promised promotion or better treatment if they [are] ‘sexually cooperative’ with a co-worker or supervisor.”

It bears repeating (again): We don’t and may never know the full details of the allegations against Cain. Yet brushing them away as failed jokes or benign compliments to greedy women doesn’t comport with what witnesses are describing: Reports of Cain’s “aggressive and unwanted” behavior toward a subordinate that were “persistent” and spanned “several incidents”  may not strike you as serious. But for a young woman, afraid for her job and her reputation, they are career-defining. Nobody is suggesting these claims are necessarily true. But to claim that they must be false because all women lie and all harassers are just joking is a terrifying proposition. Even more than the outright antagonism of so many conservative pundits, what’s worrying to me is the indifference of so many Republican voters:  New poll results show that 70 percent of Republicans say the sexual harassment scandal makes no difference in their vote. It’s no longer just a Republican war on women. It’s a war on the idea that any woman might ever tell the truth.

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