Gretchen Carlson Sues Roger Ailes for Sexual Harassment

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 2, 2016

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Sexual Harassment at WorkSexual harassment lawsuits are often avoidable if businesses adopt and enforce policies that prohibit employees from subjecting other employees to suggestive remarks or sexual advances. When the CEO engages in sexual harassment, however, those policies offer scant protection. That scenario is exemplified by Gretchen Carlson’s sexual harassment lawsuit against Roger Ailes, the chairman of Fox News.

Carlson’s lawsuit is attracting media attention because Carlson is a media celebrity. The former co-host of “Fox & Friends” was one of the most visible Fox News anchors for eleven years. In a statement on her Facebook page, Carlson said she sued Ailes because she wants to “speak out for all women and the next generation of women in the workplace.”

Sexual Harassment Allegations

Carlson’s complaint alleges that Ailes “retaliated against Carlson and sabotaged her career because she refused his sexual advances and complained about severe and pervasive sexual harassment.” Carlson contends that her termination on June 26, 2016 was related to her refusal to have a sexual relationship with Ailes. She also complains that she was denied fair compensation, plum assignments, and “career-enhancing” opportunities because she rebuffed and complained about Ailes’ advances. She further complains that Ailes’ pattern of conduct created a hostile work environment.

Specifically, Carlson alleges these facts:

  • Fox & Friends co-host Steve Doocy regularly treated her in a sexist and condescending way, mocked her during commercial breaks, refused to engage with her on-air, belittled her contribution to the show, and shunned her after the show.
  • In response to her complaints about Doocy’s behavior, Ailes called her a “man hater” and told her to “get along with the boys.”
  • In retaliation for her complaints, Ailes removed Carlson from the “Culture Warrior” segment of “The O’Reilly Factor,” gave her less airtime, refused to assign her to “hard hitting” political interviews, and removed her from “Fox & Friends.”
  • Ailes told Carlson during meetings that she should stop being so easily offended and seeing everything as if “it only rains on women.” He also told her that she was trying to “show up the boys” on Fox & Friends.
  • Ailes “ogled” Carlson, told her to turn around so he could view her posterior, urged her to wear outfits that enhanced her figure, and made repeated comments about Carlson’s legs.
  • Ailes made sexual advances to Carlson by “various means” that included complaining about his marriage, stating that Carlson would be his choice if he were stranded on a desert island with only one person, telling Carlson that he was sure she could do “sweet nothings,” and asking Carlson how she felt about him before asking “Do you understand what I’m saying to you?”
  • Ailes made embarrassing comments to others in Carlson’s presence, including bragging that he had slept with three former Miss Americas but not Carlson, calling her “sexy,” and saying that he always remains seated when a woman greets him so she has to bend over.

Carlson’s complaint states that she met with Ailes in an effort to end the harassment, but that during the meeting Ailes said “I think you and I should have had a sexual relationship a long time ago” and told her that “sometimes problems are easier to solve that way.” Carlson also alleges that Ailes made clear that he had the power to make anything happen for her if she listened and understood what he was saying.

According to Carlson, Ailes retaliated when she refused to engage in a sexual relationship or sexual banter. Acts of retaliation included reducing her pay to a level that was substantially less than male anchors received, curtailing her appearances as a guest commentator on prime time shows, blocking her from appearing as a substitute host in prime time, and failing to give her the support that other anchors received. Carlson alleges that her termination was the final act of retaliation.

No Federal Claims

Carlson did not sue Fox News. Her complaint alleges that Ailes acted independently for his own purposes, not on behalf of the network. According to Carlson’s lawyer, Carlson’s grievance is with Ailes personally. A more likely explanation is that Carlson hopes to avoid the mandatory arbitration clause in her employment contract by suing Ailes rather than Fox News.

Carlson’s complaint alleges that Ailes violated the New York Human Rights Law, which prohibits sex discrimination and sexual harassment. No claim is made under federal law, perhaps because federal judges are more often hostile to civil rights claims than are state court judges.

The lawsuit was filed in a New Jersey state court. Ailes owns a home in New Jersey. Carlson may have sued Ailes in New Jersey to prevent him from removing the case to federal court. Ailes is attempting to do so anyway by arguing that he is domiciled in New York, not in New Jersey.

Carlson’s lawyer may also have decided that it is easier to sue Ailes personally under New York law. Federal law tends to restrict liability for sexual harassment to the corporate employer rather than individual officers of the corporation.

Fox News and Ailes Respond

Fox News has taken the cautious approach of expressing “full confidence” in Ailes while stating that it takes Carlson’s claims seriously. Fox stated that it will conduct an internal investigation of the charges.

Ailes released a statement that accuses Carlson of making false claims in retaliation for the network’s decision not to renew her contract. Ailes attributes that decision to Carlson’s low ratings. Ailes also notes that Carlson recently wrote a book in which she thanked Ailes for the opportunities she received at Fox News.

Carlson’s Word Against Ailes’?

No evidence has yet been presented in court. The strength of the evidence on both sides of this dispute is not yet known.

The highly compensated hosts at Fox News are often described in media reports as being “fiercely loyal” to Ailes. Prominent female hosts on Fox News have expressed their support for Ailes. It remains to be seen whether current Fox News employees will corroborate Carlson’s allegations or deny them.

Carlson’s lawyer told the press that several women have contacted her to report similar experiences with Ailes. They may be able to provide corroboration of Carlson’s claims by showing that Ailes engaged in a pattern of sexually harassing behavior.

Ailes’ biographer interviewed four women who said that “Ailes had used his position of power to make either unwanted sexual advances or inappropriate sexual comments in the office.” One former Fox employee has publicly alleged that Ailes (perhaps jokingly) offered her a salary increase in exchange for sex on demand.

Carlson’s lawyer described the evidence in support of Carlson’s claim as “powerful,” but declined to reveal whether audio or video recordings of Ailes’ statements would be offered in support of Carlson’s claims. Even if the case comes down to Ailes’ word against Carlson’s, the jury may be inclined to believe Carlson if the court allows other women to testify that they were subject to similar incidents of harassment.

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