Sex on TV: Final FAQs for employers about the Roger Ailes case

Well, Gretchen is out, Roger is out, and Megyn is in. Your Magic 8-Ball is here to answer the sexual harassment questions that employers are dying to ask.

No. 1. I thought sexual harassment investigations were supposed to be confidential. Wasn't it Magic 8-Ball 2.flickrCC.frankieleoninappropriate for all of the Fox on-air talent to be expressing their opinions in public about whether Roger Ailes did it or not? 

"Concentrate and ask again." I hear what you're saying, and in a normal employment setting, I would agree. But in this case, everyone was a big name, and Gretchen Carlson and her attorneys were the ones who went public with her allegations. Once they did, I think Mr. Ailes had a right to try to defend himself. So did the Fox people who had opinions (good or bad) based on their experience with him. But, yes, in normal circumstances -- which these were not -- everyone would be cautioned to keep things confidential, and any media inquiries should have been referred to a public relations person in consultation with the employer's attorneys, or to the attorneys themselves.

No. 2. Couldn't all these public defenses of Roger Ailes have a chilling effect on women who were thinking about coming forward?

"Reply hazy try again." Certainly they might have. On the other hand, the public defenses of Mr. Ailes may have prompted more women to speak out in support of Ms. Carlson.

No. 3. Is this Bill Cosby all over again? For example, I heard that some of Roger Ailes' bad behavior when he was a producer of the Mike Douglas Show, which was on TV from 1961 to 1981. Can those women bring claims against Mr. Ailes now?

"Outlook not so good." Drugging women and having sex with them when they were unable to consent, as Mr.Bill Cosby.flickrCC.MikeLicht Cosby has been accused of doing, is a crime and has been a crime forever, as far as I know. If it wasn't rape in the old days, it was tantamount to rape. (Criminal lawyers, correct me if I'm wrong.) Mr. Ailes, on the other hand, has been accused of sexual harassment, which is rarely a crime (unless it involves rape or sexual assault), and was not even recognized as a civil claim until about the mid-1980s. As far as I have heard, Mr. Ailes been accused of propositioning women, making passes at a few (usually unsuccessfully), making crude or at least inappropriate comments, and indicating that they will have a better chance of success in TV land if they "put out." This is what they used to call "ungentlemanly" or "caddish" behavior. It was frowned upon in the old days, but it probably wasn't a crime or even the basis for a civil lawsuit. If I'm wrong, and if a woman could have sued in the '60s or '70s for this type of thing, then the statute of limitations has long passed.

No. 4. I read that a Fox News executive, defending Roger Ailes, said this: "I look at Roger, it's like Mad Men. This guy came of age in the '50s, '60s and '70s when it was a whole different culture." Is that a valid defense?

"My sources say no." Mad Men was a very good show, but the female characters were treated like dirt. Well, maybe with the exceptions of Rachel Menken and Marie Calvet. Don Draper is not a role model for the modern workplace. If you haven't already seen them, check out How to Succeed in Business Without Really Trying (1967, starring Robert Morse, who played Bertram Cooper in Mad Men) and The Apartment (1960, starring Jack Lemmon, Shirley MacLaine, and Fred MacMurray) to see what the workplace may have been like for women in the 1960s. If the movies are accurate, then it was bleak.

Mad Men.flickrCC.MyLifeInPlastic
Talk about a hostile environment!

No. 5. OK, well, moving to the enlightened era, did Roger Ailes (allegedly) do anything that was really so bad?

"You may rely on it." There are allegations that he did some bad things (see list in Magic 8-Ball's answer to No. 3) after coming to Fox News in 1996 and maybe even more recently. Megyn Kelly reportedly told the lawyers investigating Ms. Carlson's allegations that Mr. Ailes hit on her twice when she was a young reporter 10 years ago. The worst allegations - in my opinion - are that Mr. Ailes indicated to some women that sleeping with him or with other executives was the way to get ahead. And a few women have said that after they said "no, thanks," they were removed from assignments, fired, or not hired. This is the really, really bad type of sexual harassment for which employers are strictly liable.

No. 6. Speaking of Megyn Kelly, isn't she a snake for waiting 10 years to bring this up, and even after Roger Ailes was good enough to stand up for her against Donald Trump?

"Don't count on it." I suspect the reason that Ms. Kelly said nothing for 10 years was that she had moved past whatever Mr. Ailes had allegedly done. In other words, it sounds like Mr. Ailes took no for an answer (after she turned him down the second time), and she got over it and had a good career at Fox. But think how you'd feel if you were in her position. You know that the boss made inappropriate sexual advances to you in the past, so you know he's capable of it. Then one day you hear that another woman has accused this same boss of sexual harassment, and some lawyers call you in for an interview. They ask, "Have you ever seen Mr. Ailes behave in a way that you thought was inappropriate?" The truthful answer, based on your own experience, is "Yes." If you say "No," then you are lying, and you may be causing problems for your co-worker who has credibly (again, based on your own prior experience) alleged that she was harassed. Wouldn't you want to tell the truth? I know that, as a lawyer who investigates sexual harassment allegations, I would want you to. (Side note: Donald Trump is defending Roger Ailes now. Can this year get any weirder?)

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No. 7. Well, then, isn't Megyn Kelly a hypocrite for wearing that revealing tank top with spaghetti straps to the GOP Convention right before Roger Ailes was forced to resign in shame?

"My reply is no."

No. 8. Generally, how do you feel about Fox's response to Gretchen Carlson's harassment allegations?

"Ask again later." You're supposed to ask the Magic 8-Ball a yes or no question!

But the Magic 8-Ball is in a good mood. Generally, from what I've read, it sounds like Fox News did a thorough investigation, wisely using outside counsel since the accused was the CEO, and substantiated some of the allegations and got Mr. Ailes out of there fairly quickly and with a minimum of drama. Although $40 million (or whatever it was) seems like a lot of money to pay a sexual harasser, Mr. Ailes had a contract, and I'm sure it's better for everybody to let him resign, take his money, and exit relatively peacefully.

So that's it from here on the Roger Ailes-Gretchen Carlson case, unless Mr. Ailes' request for arbitration is denied and the case goes to court. I don't think that will happen, but if it does, we'll have enough blog fodder to last us until I die.

Image Credits: The following are from flickr, Creative Commons license -- Magic 8-Ball by frankieleon, Bill Cosby by Mike Licht, and cast of Mad Men by My Life in Plastic. Screen shot of tweet about Megyn Kelly's convention attire by me.

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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