Sex harassment myth: "He said/she said" is no big deal.

I assume everyone has heard by now about Gretchen Carlson's sexual harassment lawsuit against Roger Ailes, head of Fox News.

Roger Ailes gif.flickrCC.T.J.Hawk
"Bah! It's just a 'he said/she said'!"

I read the lawsuit yesterday, and some of the things that Mr. Ailes allegedly said struck me as . . . taken out of context. He has forcefully denied the allegations.

But in Ms. Carlson's defense, a number of women have apparently made complaints about Mr. Ailes' behavior in the past.

The lawsuit may settle pretty quickly, but in case it doesn't, I'd like to take this opportunity to talk about one of the biggest myths of the sexual harassment world:

"This case won't go anywhere. It's just a he said/she said."

Oh, yeah? "He said/she said" cases "go places" all the time. To understand why, you need to know our court system.

Solely for the sake of our exercise, let's give Mr. Ailes every benefit of the doubt. In other words, let's assume that Gretchen Carlson is a total scam artist who's out for revenge because Roger Ailes, a sweet, gentle, appropriate family man, decided for good, legitimate, and non-discriminatory reasons not to renew her contract. In fact, let's assume that Gretchen Carlson had the hots for Roger Ailes and decided to sue him after he declined her sexual advances because he loved his wife so much.

Here's how our made-up scenario plays out in court:

Gretchen Carlson.flickrCC.Disney-ABCNews
Gretchen Carlson in happier times.

Ms. Carlson files a sexual harassment lawsuit, accusing Mr. Ailes of telling her she will get ahead on the job if she sleeps with him and then refusing to renew her contract when she says no. Even though these allegations are completely false (again, we're giving Mr. Ailes the benefit of the doubt), Mr. Ailes can't get the lawsuit dismissed immediately, because at the early stages the courts have to assume that all of the "facts" alleged in the lawsuit are true. In other words, the courts are required to give the benefit of the doubt to the plaintiff, not the defendant.

The only way Mr. Ailes can get the suit thrown out at the beginning is if (1) the behavior that Ms. Carlson claimed he engaged in is not sexual harassment (e.g., "The Defendant said good morning to me as we passed in the hallway"), or (2) sexual harassment is not illegal.

Promising a job-related reward in exchange for sexual favors and firing a person for saying "no" is clearly sexual harassment, and sexual harassment is clearly against the law. Therefore, the case cannot be thrown out in the early stages.

So the parties proceed with discovery. Ms. Carlson's attorney takes Mr. Ailes' deposition, as well as the depositions of Steve Doocy and Bill O'Reilly. Mr. Ailes, Mr. Doocy, and Mr. O'Reilly all state unequivocally under oath that Mr. Ailes never, ever sexually harassed Ms. Carlson and is pure as the driven snow. They are all very credible.

Mr. Ailes' attorney takes Ms. Carlson's deposition, and she commits perjury and falsely states that Mr. Ailes promised her rewards for sleeping with him and non-renewed her contract when she did not. When Ms. Carlson testifies, she crosses her fingers, has shifty eyes, fidgets in her chair, and does not sound convincing at all.

Can Mr. Ailes now get the court to dismiss the lawsuit at the end of discovery but before trial?

No! What most people call a "he said/she said" is what the courts call a "genuine issue of material fact." The only way to resolve the two conflicting stories is to send the case to a jury (or, perhaps, let the case be tried in front of a judge who will act as a "jury"). That's what juries are for - they listen to both sides, weigh the evidence, and decide who is more believable.

Bill O'Reilly.flickrCC.RobertHuffstutter
Bill O'Reilly: Character witness

You never know what will happen at trial. Maybe justice will be done, and our fictional Mr. Ailes can return to the bosom of his beloved family. But maybe not. Even though Ms. Carlson wasn't convincing in her deposition, she may have hired a consultant to help her be "presentable" at trial. And maybe Mr. Ailes is nervous because so much is at stake, so he comes across to the jury as having something to hide. Or maybe he has a cold on the day of trial, or maybe he wears hard contact lenses that make him squint and look dishonest.

The moral: A "he said/she said" case can be bad for both parties. It can't be wrapped up quickly (absent settlement), and the outcome turns entirely on who 12 random people believe is more credible based on how they perform in an artificial environment for a few hours.

It can certainly be bad for an accused who is actually innocent. At the very least, he'll have to undergo the stress, embarrassment, and expense of a lengthy sexual harassment lawsuit. At worst, he'll have to do that plus be found liable at the end, having to pay the accuser a lot of money and her attorneys' fees.

A "he said/she said" case also be bad for the accuser. At the very least, she'll have to undergo the stress, embarrassment, and expense of a lengthy sexual harassment lawsuit. At worst, the scumbag will get off, and she'll end up with nothing and might even have to pay his attorneys' fees.

What should employers do when they get a "he said/she said" harassment allegation?

Ms. Carlson has said she does not plan to take legal action against Fox News, but most employers are not that lucky.

I've had clients who used to tell me that they couldn't do anything in a "he said/she said" scenario because there was no way to know who was telling the truth. (This was a really long time ago.)

Here are some things that an employer can do to try to resolve a "he said/she said" allegation:

No. 1: Talk, not only to the accuser and accused, but also to all witnesses whom they identify. Find out as much as you can, and ask the witnesses to be specific. Also ask them to identify any witnesses about whom they are aware. Follow all leads until they end.

No. 2: Review any relevant documentation -- including electronic documentation such as text messages and voice mail recordings -- to determine whether there is any "documentary" evidence that helps you decide one way or the other. Look for evidence of a consensual affair, too - frequently, that is what's really going on. If it's a consensual affair, then it's not harassment.

No. 3: Consider any other "context" that might help you decide. Was the accuser in trouble on the job? What is her general reputation for honesty? Is she a chronic complainer? How about the accused? Has he been accused of inappropriate behavior in the past? Is he a bully? Is there anything about him that gives you a bad feeling?

No. 4: Determine who you think is more credible, taking into account everything you learned from steps 1-3. There is a place for your "gut," but rely on objective facts as much as you can.

It's possible that you will go through all of these steps and still not know who's telling the truth. If you don't know, then explain that to the parties, and make sure that the accuser knows she can come back if anything else occurs or if she has any new leads. (If the allegations are severe, you may want to take additional action to protect both parties.) Of course, document everything you did and why.

As an employer (as opposed to the accused harasser), you can take some comfort in the fact that you may escape a sexual harassment trial simply by doing your "due diligence" when you get a complaint. Even if a jury finds that the harassment occurred. "Due diligence" includes having a plain-language policy that covers the behavior at issue, keeping your training current, responding quickly and thoroughly to complaints, and taking appropriate action based on the outcome of a thorough investigation.

Assuming the Carlson-Ailes lawsuit doesn't settle, you'll probably be hearing more from me on this one.

Image Credits: From flickr, Creative Commons license. Photo of Roger Ailes as Roman Emperor by T.J. Hawk; photo of former Miss America Gretchen Carlson at Miss America event by Disney/ABC; photo of Bill O'Reilly by Robert Huffstutter. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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