Years ago, I briefly considered a job on a different career path. A person whose position made him a gatekeeper for that job had contacted me to ask if I was interested in being considered. He suggested we meet to discuss it, and named a restaurant. When I arrived, we had a respectful conversation about my qualifications. Then, his hands reached and landed squarely on my leg. I removed them. He suggested we go to my place, and I said no. When I went to hail a cab, he grabbed my shoulders, turned me toward him, and pressed his lips and tongue onto my mouth as I pulled away. As I closed the car door in his face, he asked me to send him materials that would support my application. I sent them. Soon afterward, he proposed that we date. I responded that our relationship would never be more than professional. He accepted that, and continued in the next months to encourage me to seek the job, even introducing me to people he thought could help me. But I stopped considering it and didn’t look back. Several factors contributed to my loss of interest, including my contentment with the job I already had, but one was the downside of having to navigate the professional yes alongside the romantic no.
At the time, I was a tenured law professor at Harvard. I didn’t need a new job, or fear negative consequences from rejecting sexual advances. But it wasn’t lost on me that my circumstances were rare. For many, the combination of welcome professional opportunity and unwelcome sexual attention presents the unsettling possibility that objecting to the latter may cost them the former. This insight led courts and agencies to interpret workplace sex discrimination, for which employees can sue their employers, to include what has been widely known since the nineteen-eighties as sexual harassment.
The term “sexual harassment” refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. But this conduct is unlawful only when it results in a negative employment decision (like demotion, firing, or causing someone to quit), or when it is so pervasive or severe that it creates a work environment that a reasonable person would find hostile or abusive. Isolated remarks or incidents (like “You look so great in that dress!”) that may cause some people discomfort, but aren’t objectively severe, do not make for unlawful sexual harassment. And the Supreme Court has noted, in applying Title VII, the federal anti-discrimination law, that sexual-harassment law is not a “general civility code” for the workplace—much uncivil conduct, even of a sexual nature, does not rise to the legal threshold for sexual harassment.
The former Fox News anchor Gretchen Carlson’s lawsuit, filed last month against Fox News’s former chairman and C.E.O. Roger Ailes, includes factual allegations that may amount to a hostile work environment, but it focusses on the easier-to-establish claim that she was demoted and fired in retaliation for refusing his sexual advances and for complaining of sexual harassment by a co-anchor. Her court complaint relies on a New York City discrimination law that, unlike the federal discrimination law, enables her to sue Ailes the individual, rather than Fox. Her suit omits Fox as a defendant, presumably because in her employment contract she agreed to resolve legal disputes with Fox in confidential arbitration rather than public litigation. Ailes will likely argue that the court should dismiss the lawsuit to disallow an end run around the Fox arbitration clause. The public nature of the suit undermines a key goal of the clause: to maintain secrecy around such allegations.
This week, the Fox News host Andrea Tantaros, who is currently suspended from the network, filed her own lawsuit against Ailes and numerous others. She claims to be exempt from the confidential-arbitration clause because Fox previously breached it by leaking information about an employment-contract dispute to the press. In addition to naming Fox and Ailes as defendants, she is suing several top Fox News executives for allegedly responding to her complaints about Ailes with retaliatory acts that included demoting her and taking her off the air. She alleges that Ailes’s former deputy Bill Shine, who this month was elevated to co-president of Fox News, told her that Ailes was a “very powerful man” and that she “needed to let this one go”; that Irena Briganti, the head of media relations, engaged in a “retaliatory media vendetta against her”; that her multiple complaints to Suzanne Scott, the head of programming, about sexual harassment and retaliation went unaddressed; and that, in an attempt to silence her complaints, the chief in-house lawyer, Dianne Brandi, created the pretextual claim that Tantaros had breached her employment contract by publishing a book without network approval. Tantaros’s lawyer has revealed that Fox previously offered the news host a seven-figure settlement to drop her sexual-harassment claims. (A Fox News representative declined to comment on any of the accusations concerning Ailes, and stated that the other executives named in Tantaros’s lawsuit have since denied her allegations.)
Since Carlson’s lawsuit, more than two dozen women have reportedly disclosed inappropriate conduct by Ailes, throughout his career, and by other male employees during his time at Fox. At least two of these women disclosed previously receiving settlements from Fox to resolve their complaints. Laurie Luhn, who says that she provided sexual services to Ailes during her twenty years of employment, an arrangement she said was aided by his deputies, told New York magazine that she was paid $3.15 million in a confidential settlement as she departed the company, in 2011. Luhn and other women who are now going public with their allegations are flouting nondisclosure agreements that are part of their settlements. The former Fox News correspondent Rudi Bakhtiar, who claims she was fired for complaining about sexual harassment, and who reached a confidential settlement with the company, said she spoke out now to help expose the culture of sexual harassment that pervades Fox. It is rare for people to jeopardize a settlement by breaching one of its key terms, but Bakhtiar has dared Fox to try to enforce the nondisclosure agreement. Given what Fox is dealing with on the public-relations front, it is unlikely to sue Bakhtiar to enforce her agreement to stay silent.
There is, of course, nothing wrong with an employee and an employer reaching a financial settlement to resolve potential legal claims and agreeing to keep it confidential. Had Carlson and Tantaros been offered amounts that they considered sufficient, they wouldn’t have needed the trouble and expense of going to court to sue for damages. Indeed, filing a lawsuit is often a spur to settlement; Fox and Ailes are reportedly in settlement talks with Carlson, the goal of which would be her agreement to drop the lawsuit, and it would be surprising if talks with Tantaros did not soon follow. But a side effect of confidential settlements, most of which occur before public disclosure of allegations, can be to aggravate an institutional culture in which misconduct is papered over and silence is perceived as a condition of employment. An important aspect of what Carlson has done with her lawsuit, whatever its ultimate result, is to blow up the dam of confidentiality.
Less than a week after Carlson filed her lawsuit, Fox hired the law firm of Paul, Weiss to conduct an internal investigation of the allegations of sexual harassment. An employer is legally liable for sexual harassment that creates a hostile work environment if it “knew or should have known” about the problem—unless it can show that it took immediate corrective action. Firing Ailes and launching the investigation may be an attempt at a correction, but the allegations that Ailes was not a lone culprit, and that executives around him retaliated against those who complained of his conduct, make his departure look like a paltry fix, especially since he was not fired for cause but, rather, given a forty-million-dollar exit package. Promoting Shine to lead Fox News under these circumstances, too, seems to undermine the company’s efforts to address the problem. If the Paul, Weiss investigation confirms that executives systematically failed to investigate complaints of harassment, and, worse, made it miserable to complain about it, it will be difficult for the company to show that it is managing the problem without firing those executives.
The problem of workplace culture raises a second-order question, about the effectiveness of internal structures that would enable an employer to know of and fairly address harassment. Such structures should include communication to employees of explicit policies against sexual harassment and resulting sanctions, designation of officials clearly outside of the employees’ chain of command to take complaints, and orderly procedures for prompt and impartial investigation of complaints. Unlike what reportedly happened around Ailes, neither an employee’s supervisor nor the person being accused of harassment should have any control over an investigation. And when the employer determines that harassment occurred, it is supposed to take immediate measures to stop it, insure it does not recur, and discipline the person responsible. In addition to defending lawsuits and negotiating settlements, Fox now has a broader imperative to regularize its procedures for receiving and investigating complaints, and to determine why individuals at the company believed that standard rules of behavior did not apply to them.
The pioneering feminist law professor and rape survivor Susan Estrich, who is also Ailes’s lawyer in Carlson’s suit, has written about the “serious disincentives to women filing sexual harassment complaints,” including embarrassment, loss of privacy, and being “branded a troublemaker.” My own experiences of inappropriate conduct in professional situations exist in a wider context, in which most individuals don’t bother to complain—perhaps because, when it comes down to it, they calculate that their energy and time are better spent on being productive at work and doing things that give them pleasure. But what are the circumstances in which the calculus is different and make a complaint feel worthwhile? Often it is when there has already been a visible negative employment result and a tangible possible remedy, as in the cases of Carlson, Tantaros, and Bakhtiar. The remarkable developments in the past month have created an opening in which women who have worked at Fox have little to lose.
[Source:-The New Yourker]
