Gretchen Carlson Seeks to Expose Roger Ailes’ Toxic Male Gaze, and Might Deal a Blow to Forced Arbitration in the Process, by Nina Frank

We have learned a lot in the few short days since Gretchen Carlson, former Fox News anchor, filed her lawsuit alleging sexual harassment and retaliation against Fox CEO Roger Ailes. While the allegations underlying the lawsuit may not be particularly surprising to anyone who knew anything about Ailes or the culture of Fox News, the fact that a lawsuit was filed, and the way it was filed, demonstrates remarkable legal ingenuity and personal bravery. The Carlson lawsuit underscores just how high the chips are stacked against women coming forward to report harassment and discrimination, but also may give us a roadmap to even those odds.

Carlson’s lawsuit details textbook quid pro quo sexual harassment, where a superior demands sexual favors and offers promotions and perks if the employee submits, and/or threatens demotions and other adverse actions if the employee refuses. According to the complaint filed in New Jersey Superior Court, Ailes subjected Carlson to near-constant commentary about her figure, focusing especially on her legs and posterior, and repeatedly attempted to engage her in sexual banter. When she had enough and asked that he stop, Ailes allegedly stated, “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better.” When Carlson refused, she alleges that Ailes reduced her compensation, denied her various opportunities, and severely curtailed her on-screen appearances, culminating in Ailes refusing to renew her contract in June 2016. According to Carlson, instead of being given the respect she deserved, she was treated as a “blond female prop,” and when she complained, Ailes called her a “manhater.”

Since Carlson filed her lawsuit on July 6, more than a dozen other women have come forward, either to Carlson’s lawyer or to the press, with shockingly similar stories of harassment at the hands of Ailes. All were propositioned for sexual favors, and in many instances informed by Ailes that they were expected to provide those same sexual favors for a select group of Ailes’ close friends whenever asked. All were told, in no uncertain terms, that their careers depended on it.

These stories shouldn’t come as a shock to anyone with a basic familiarity with Fox News and the way Ailes runs it. Fox News is the network embodiment of the male gaze, where women – themselves overwhelmingly white and blond – are to be seen and not heard. It is an unspoken rule at the network that female anchors are not allowed to wear pants. The network even employs a so-called “leg cam” that makes sure to capture an under-the-table shot of female panelists’ legs on several programs. Megyn Kelly, supposedly one of the most respected female anchors at Fox, was forced to walk around the newsroom with the camera following her legs during election night 2012 – possibly as a last-ditch effort to distract from Karl Rove’s insanely inaccurate electoral predictions, but demeaning all the same. And anyone who has been forced to watch Fox & Friends is familiar with the daily barrage of sexist commentary Carlson had to put up with, and that’s just on-screen.

The response to Carlson’s lawsuit from the Fox camp has been unsurprising. In a statement, Ailes called the allegations completely “false” as well as a “conveniently-timed retaliatory attack against him” in response to Fox terminating Carlson’s contract. Ailes blamed Carlson’s “disappointingly low ratings” that were “dragging down the afternoon lineup” as the reason she was not asked back. Using pages from the typical playbook, Ailes impugned Carlson’s integrity, credibility, and work performance, branding her a scorned woman who resorted to lying in the hopes of getting a payout, even though in truth, Carlson’s ratings were the highest in her timeslot. Also typical were the responses from female Fox News anchors Greta Van Susteren and Jeanine Pirro. According to Van Susteren, since behavior like the kind alleged had never been directed at her, and because Van Susteren herself had never heard of Ailes doing such things, the allegations could not possibly be true. As for Pirro, she classified Ailes as the “victim” in this scenario, and excoriated Carlson for being so full of herself as to claim that Ailes had been “chasing” her.

It is also not surprising that the heart of Carlson’s lawsuit focuses on the professional retaliation she experienced rather than the underlying harassment. As the New York Times recently pointed out, it is much easier to prove retaliation than discrimination or harassment. Juries have an easier time understanding retaliation, in contrast with having to judge what constitutes harassment and discrimination, which can quickly become mired in subjective bias. Retaliation plaintiffs are able to point to specific evidence, such as a short period of time between their complaint or refusal to engage in sexual activity and the adverse employment action, in order to prove the retaliatory connection.

But the lawsuit’s biggest surprise? The fact that Carlson chose to file it against Roger Ailes in his individual capacity, rather than against Fox News Corp., presumably the bigger fish in this scenario. This may turn out to be a brilliant move on behalf of Carlson’s attorneys: it could allow her to bypass the prohibition in Carlson’s contract that limits any suit she may bring regarding her employment only to a private and confidential arbitration. Employers like Fox have employees sign arbitration agreements to avoid this very reality: being forced to defend against allegations in the press when public lawsuits are filed. However, it looks like the Fox lawyers may have been a bit lazy in drafting Carlson’s arbitration agreement: it only mentions an agreement between Carlson and Fox, so a credible argument can be made that Ailes is not even a party to the agreement and therefore not protected by it. Ailes’ attorneys have already filed suit in Connecticut federal court to compel arbitration, but he’ll be fighting an uphill battle, and much of the PR damage has already been done.

Gretchen Carlson is no stranger to speaking out against workplace sexism and harassment, but this move is different than jokingly storming off set in response to sexist commentary, and much braver. Not only has she stood up publicly against harassment and retaliation, but her lawsuit has also allowed a possible avenue to fight against the rigged system of employment arbitration. Not bad for a “blond female prop.”

 

 

 

Picture Credit: http://www.vecteezy.com/vector-art/86456-news-reporter-vectors

Gretchen Carlson Seeks to Expose Roger Ailes’ Toxic Male Gaze, and Might Deal a Blow to Forced Arbitration in the Process, by Nina Frank




Nina Frank

Nina Frank is an attorney in New York, representing individual employees in litigation and negotiation in all areas of employment law.