The Effect of the Fox News Scandal: Identifying and Fixing What “Ailes” Your Workplace

Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
mtrachtman@powelltrachtman.com

The EEOC’S survey data indicates that 25% to 75% (depending on how the survey questions are phrased) of all female workers are victims of sexual harassment, and that roughly three out of every four never report it, usually because of the fear of retaliation or the belief that their allegations will be discredited or ignored.  If past is prologue, however, there is a very good chance that, as a result of the now-infamous Fox News\Roger Ailes scandal, a much greater percentage of sexual harassment victims will be more willing to follow through with sexual harassment claims.  The likely result: employers which have not proactively identified and pre-empted the sources of potential (and often very subtle) sexual harassment in their workplaces will pay the price.

What Happened, and Why It’s Different

Roger Ailes, the founder and chairman of Fox News, was (among other positions of influence) one of the most powerful media figures in the world.  A former Fox News anchor, Gretchen Carlson, accused Ailes of sexual harassment.  Several other women employed by Fox News (such as the popular Megyn Kelly) then made similar allegations (while others sprang to Ailes’ defense), and in a matter of days, Ailes had “resigned,” accompanied by a monumental frenzy of media coverage and punditry.

Allegations of sexual harassment against men who hold powerful and influential positions are nothing new, but the Ailes case is different.

Most of these claims (many of which, it must be stressed, are ultimately proven to be shake-downs) follow a predictable pattern.  The accused vigorously denies the allegations or claims that whatever happened was consensual. The accuser gets the clear message that following through on the allegations will be an arduous and humiliating battle against top-notch lawyers, even if she wins.  Eventually, the case is settled for “an undisclosed sum” subject to an agreement in which the accuser agrees to say nothing further about the accusations or the settlement, while the accused has free reign to continue to deny responsibility, explaining that the payment was made in order “to get on with my life.”  The upshot is that the accuser is left under a cloud (did it really happen, or did she lie to try to get some money?), reinforcing the reluctance of other women who were, in truth, sexually harassed to bring similar claims.

The Ailes’ case did not follow the formula.  The accused, a seemingly all-powerful and untouchable king of his own kingdom, did not just write a check and move on – instead, he lost his influence and reputation, almost instantaneously, and Carlson became a mass media hero.  Ailes continues to deny the allegations and Carlson may still face a litigation meat grinder.  But, for now, Carlson is being lauded for her courage, and Ailes’ resignation is speaking much louder than his denials.  In the process, a very different and empowering message has been sent.

Will the Ailes’ Case Lead to an Upsurge in Sexual Harassment Claims?

There is good reason to believe that it will.

In 1991, a law school professor, Anita Hill, accused Supreme Court nominee Clarence Thomas of sexual harassment in graphic testimony during Thomas’ nationally televised senatorial confirmation hearing.  Hill was excoriated and her motives were questioned through aggressive, sometimes belligerent, questioning from Senators who supported the Thomas nomination, and Thomas (who called his ordeal “a high-tech lynching”) was ultimately confirmed despite Hill’s accusations.

Pundits predicted that the public travail Hill endured, and the fact that the Thomas nomination succeeded despite her testimony, would dissuade other women from making similar sexual harassment accusations.  They were wrong: from 1991, when Hill testified, to 1998, EEOC sexual harassment complaints more than doubled.  The likely reason is that Hill had no apparent axe to grind, she stood her ground despite the powerful political forces that aligned against her, she emerged as something of an icon in the academic and talk show worlds, and she became an “if she can do it, I can do it” role model for many women

There are many parallels between Gretchen Carlson and Anita Hill – except that the object of Hill’s complaints, Justice Thomas, survived her claims, while the object of Carlson’s complaints, Roger Ailes, did not (at least so far).  Given that and the vast amounts of publicity given to Carlson’s allegations and Ailes’ seeming surrender, there is every reason to believe that, as happened in 1991, women who harbor similar accusations will be more willing to come forward, and less likely to believe that their only practical alternative is to grin and bear it.

Three Takeaways

Well-advised employers need to focus on the following.

First, sexual harassment claims may (and very frequently do) involve conduct that is much more subtle than the conduct ascribed to Ailes.  EEOC files are replete with cases involving no more than a course of conduct characterized by ribald hints, veiled suggestions, and borderline-vulgar comments.  The typical excuses – “I didn’t mean anything, I was just having some fun” and “That’s just the way Sam is, he’s old school, don’t worry about it” will not fly, and must be purged from the workplace.

Second, since a 1998 Supreme Court decision, here is the law: if the harassment happens at the supervisory level, even if the employer did not know about it, the employer will be liable.  If it results from the conduct of lower-level personnel or, even, outsiders in or associated with the workplace, and despite the employer’s best intentions it does not respond immediately and in the manner the law requires (do not try this on your own), the employer will be liable.  Period.  There are no defenses.

Third, given the Supreme Court’s position, as a practical matter (and sometimes by statute), training designed to prevent harassment is effectively mandatory.  Aside from the fact that prevention is momentously preferable to the time and expense it takes to defend a lawsuit, imagine how you will look to a judge or jury (or, for that matter, to prospective employees and customers) in the wake of a situation where one of your managers is charged with sexual harassment, and aside from a boilerplate handbook provision, you did nothing to protect your employees from that kind of workplace conduct.

Let us know if we can help.

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Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years.  He can be contacted at mtrachtman@powelltrachtman.com. See www.powelltrachtman.com for more information.