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.

Republican presidential candidate and former Godfather's Pizza CEO Herman Cain.
Herman Cain's defenders have dismissed the sexual harassment claims against him without knowing the whole story

Photograph by Chip Somodevilla/Getty Images.

I have no idea what Herman Cain did with the two, or maybe three, or possibly now four women who have raised allegations of improper sexual behavior about him. I don’t know whether any of them will come forward and run the risk of being labeled a slut for their efforts to do their jobs without being treated like pole-dancers. I do know that—as Amanda Marcotte so eloquently explained this week—the very same people who insist that we don’t know what actually happened all those years ago seem to know exactly what happened: nothing.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Sexual harassment is now nothing. Welcome to the era of gender harassment denialism. The harassment skeptics claim that harassment, like racism, used to exist but is now over. Twenty years ago, when charges were leveled at Clarence Thomas, supporters of the accused refused to take the accuser seriously. Now supporters of the accused refuse to take the accusation itself seriously. We have gone from not knowing what sexual harassment is to not believing it still happens. All in less than 20 years.

Remember, we don’t know what happened, beyond the fact that several employees came forward with complaints and received cash settlements. That’s not a lot of information. Cain defenders could have stopped there. Instead, great swaths of them have opted to assert that there could never be a valid sex discrimination claim because the whole thing is just a racket. And they went even further: The same folks criticizing the National Restaurant Association employees who came forward with claims that they were uncomfortable in their workplace are willing to deploy the most archaic and gender-freighted stereotypes to get there. Sexual harassment can’t be “real” because the women who claim it are money-grubbing, hysterical, attention-seeking tramps.

Advertisement

Hope it never happens to one of your daughters, friends. It would suck if someone called her a humorless hooker, even before learning her name.

Why not start with John Derbyshire, who put it this way in the National Review: “Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn’t know it’s all a lawyers’ ramp, like ‘racial discrimination’? You pay a girl a compliment nowadays, she runs off and gets lawyered up.” In Derbyshire’s America, “girls” see litigating as a shortcut to riches. Evidently we can’t procure riches the old-fashioned way anymore.

Laura Ingraham, who—recall—also has no idea whatsoever what happened between Cain and his accusers, is equally certain that each of the women involved is just greedy: “We have seen this movie before and we know how it ends. It always ends up being an employee who can’t perform or who under-performs and is looking for a little green,” she said on her radio show. Exactly. Like my mom always said: If you can’t marry a rich man, your next best option is to sue one.

Or take the legal stylings of Kurt Schlichter, who asserts that “the only things you need to file a lawsuit are the filing fee and a printer. Facts are optional. … Where sexual-harassment law once protected women from being forced to be the playthings of crude lechers, it’s been transformed to enforcing a prim puritanism that drains the humor and humanity from the workplace.” The humorless line is the route Sen. Rand Paul chose to deploy as well: “There are people now who hesitate to tell a joke to a woman in the workplace, any kind of joke, because it could be interpreted incorrectly.” You catch that? Humorless puritanical women have weaponized sex-discrimination law as a part of their global war on humor.

Rep. Steve King doubled down on this theme, calling sexual harassment “a terrible concept,” and lamenting the tendency “to define an action by the perception of the perceived victim.” Not clear whether the civil justice system is better off for examining only the perceived perceptions of the drunken harassers, but I take it that King is generally more confident that men are more perceptive about all things than the women who work for them.

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.

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.